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[U] Rawdin v. Real

Superior Court of Pennsylvania

February 26, 2014

MYRNA RAWDIN AND MARTIN RAWDIN, H/W, Appellants
v.
MARK B. REAL, M.D. AND PMA MEDICAL SPECIALISTS, LLC, Appellees

NON-PRECEDENTIAL DECISION

Appeal from the Judgment Entered March 11, 2013, in the Court of Common Pleas of Montgomery County, Civil Division at No(s): 2006-00386 2006-26593

BEFORE: FORD ELLIOTT, P.J.E., OTT, and STRASSBURGER [*] , JJ.

MEMORANDUM

STRASSBURGER, J.

Myrna Rawdin (Mrs. Rawdin) and Martin Rawdin, husband and wife (collectively "the Rawdins"), appeal from the judgment entered against them and in favor of Mark B. Real, M.D. (Dr. Real) and PMA Medical Specialists, LLC (PMA) (collectively "Appellees") in this medical malpractice action. Upon review, we vacate the judgment, reverse the order of the trial court denying the Rawdins' post-trial motion for a new trial, vacate the order on the motion in limine, and remand for a new trial.

The trial court summarized the underlying facts as follows.

In 2001, Mrs. Rawdin began treating with Dr. Real, board certified in internal medicine and geriatrics, at PMA Medical Specialists. She attended her first office visit with Dr. Real on July 5, 2001, just prior to her sixty-third (63rd) birthday. Mrs. Rawdin next saw Dr. Real on April 10, 2002, for an annual routine visit.
On June 17, 2003, Mrs. Rawdin experienced an episode of severe dizziness, which led her to call 911. The ambulance transported her to the Pottstown Memorial Hospital Emergency Room ("ER"), where the medical staff ordered laboratory studies, an X-ray and a CAT scan of her brain. The ER physician diagnosed labyrinthitis, 1 prescribed Antivert and told Mrs. Rawdin to follow up with her family doctor. Mrs. Rawdin saw Dr. Real on June 23, 2003. Based on her presentation and what Mrs. Rawdin had told him about her episode of vertigo, Dr. Real ordered an MRI of her brain. Mrs. Rawdin obtained the MRI on July 2, 2003. The MRI revealed small vessel ischemic disease, which Dr. Real considered a common finding in individuals over the age of sixty (60). A nurse from Dr. Real's office reported to Mrs. Rawdin that the results of her MRI were within normal limits. Her symptoms of dizziness resolved within a couple of weeks after the MRI.
Mrs. Rawdin next saw Dr. Real on April 29, 2004, for her annual routine checkup. On November 1, 2004, Mrs. Rawdin again presented to Dr. Real. At this visit, she related an episode at her synagogue on October 29, 2004, when she experienced the sensation that her voice did not sound normal to her, although no one else noticed anything different. She also reported a little headache and dizziness, but that the speech problem, noticed only by her, had gone away almost immediately. As part of his examination, Dr. Real checked Mrs. Rawdin's ears and had a nurse remove a large amount of earwax from her left ear. Dr. Real prescribed Meclizine for the dizziness, which resolved within a few days. Mrs. Rawdin did not see Dr. Real again after the November 1, 2004 visit. During the evening hours of Sunday, November 28, 2004, Mrs. Rawdin suffered an ischemic stroke involving the right side of her brain. [The stroke has left her with significant left-sided disability.]
1 Labyrinthitis is an inflammation of the inner ear that can cause loss of balance, vertigo and vomiting. Steadman's Medical Dictionary 2006.

Trial Court Opinion, 8/21/2013, at 2-3 (citations omitted).

The Rawdins instituted a medical professional liability action against Dr. Real on January 10, 2006, alleging that Dr. Real was negligent in failing to diagnose and treat Mrs. Rawdin's transient ischemic attack (TIA) that led to her debilitating stroke.[1] The case proceeded to a jury trial, which returned a verdict in favor of Appellees. Specifically, the jury found that Dr. Real's care of Mrs. Rawdin did not fall below the applicable standard of care. See Verdict Sheet, 9/17/2012, at Question 1. The Rawdins timely filed post-trial motions requesting a new trial, which were denied. They timely filed a notice of appeal, and both the Rawdins and the trial court complied with Pa.R.A.P. 1925.

On appeal, the Rawdins present two issues for our review.

1. Did the [t]rial [c]ourt err and abuse its discretion in granting [Appellees'] Motion in Limine to Preclude Plaintiffs' expert, Nancy Futrell, M.D. from testifying as to any opinions on the standard of care, and in its rulings during trial further limiting Dr. Futrell's testimony?
2. Did the [t]rial [c]ourt err and abuse its discretion in failing to sustain [the Rawdins'] objection to Defense Counsel's statement during closing argument that Nancy Futrell, M.D. failed to testify on the issues of negligence and causation, because earlier rulings made by the [trial court] precluded Dr. Futrell's testimony in these areas?

The Rawdins' Brief at 5.

We set forth our well-settled standard of review.

Our standard of review from an order denying a motion for a new trial is whether the trial court committed an error of law, which controlled the outcome of the case, or committed an abuse of discretion. A trial court commits an abuse of discretion when it render[s] a judgment that is manifestly unreasonable, arbitrary, or capricious, has failed to apply the law, or was motivated by partiality, prejudice, bias, or ill will.

Polett v. Public Communications, Inc., ___ A.3d ___, 2013 WL 6732103 (Pa.Super. 2013) (citing Mirabel v. Morales, 57 A.3d 144, 150 (Pa.Super. 2012) (internal citations and quotation marks omitted)). "In making this determination, we must consider whether, viewing the evidence in the light most favorable to the verdict winner, a new trial would produce a different verdict." Buckley v. Exodus Transit and Storage Corp., 744 A.2d 298, 305 (Pa.Super. 1999).

First, the Rawdins contend they are entitled to a new trial because the trial court erred by forcing them on the eve of trial to choose only one expert on the standard of care. The Rawdins' Brief at 20. Additionally, they argue that they were "substantially prejudiced by not being permitted to present the full opinions of both Dr. Genecin and Dr. Futrell" because they "tailored their opinions to very specific areas of criticism with very little overlap." Id. at 15-16.

We explain the background on this issue by first setting forth the applicable law in medical malpractice actions.

[T]o prevail in a medical malpractice action, a plaintiff must establish a duty owed by the physician to the patient, a breach of that duty by the physician, that the breach was the proximate cause of the harm suffered, and the damages suffered were a direct result of the harm. Because the negligence of a physician encompasses matters not within the ordinary knowledge and experience of laypersons a medical malpractice plaintiff must present expert testimony to establish the applicable standard of care, the deviation from that standard, causation and the extent of the injury.

Toogood v. Owen J. Rogal, D.D.S., P.C., 824 A.2d 1140, 1145 (Pa. 2003) (internal quotations and citations omitted).

The Rawdins submitted the reports of two experts to testify on their behalf - Dr. Paul Genecin, an internal medicine physician, and Dr. Nancy Futrell, a vascular neurologist. Dr. Futrell's report concluded that Dr. Real's treatment of Mrs. Rawdin fell below the standard of care in two respects: 1) in failing to perform diagnostic tests and treat the "small vessel disease" detected by the MRI in July 2003; and, 2) in failing to perform diagnostic tests in November 2004 after Mrs. Rawdin presented with her symptoms. Report of Dr. Nancy Futrell, 9/6/2009. Dr. Futrell's second report concluded that Dr. Real's treatment fell below the standard of care in failing to treat Mrs. Rawdin's high cholesterol beginning in February 2003. Report of Dr. Nancy Futrell, 7/3/2011.[2]

Dr. Genecin's report concluded that Dr. Real's treatment fell below the standard of care for an internist on November 1, 2004 because he failed to diagnose TIA and initiate an urgent neurovascular workup. However, Dr. Genecin concluded that it was impossible to tell whether Mrs. Rawdin's June 2003 symptoms represented TIAs that should have been addressed or treated. Report of Dr. Paul Genecin, 12/7/2005. In his follow up report, Dr. Genecin concluded that the fact that Mrs. Rawdin had evidence of small vascular ischemic disease on the July 2003 MRI should have heightened his suspicions of her problems when she presented in November 2004. Report of Dr. Paul Genecin, 9/29/2009.

On August 24, 2012, Appellees filed, [3] inter alia, a motion in limine to preclude Dr. Futrell from testifying as to any opinions as to standard of care. In that motion, Appellees asserted that Dr. Futrell's standard of care testimony should be precluded pursuant to 40 P.S. § 1303.512[4] because she "does not practice in the same subspecialty nor is she certified in the same subspecialty as [Dr. Real]." Motion in Limine, 8/24/2012, at ¶ 8. In a footnote in its brief in support of its motion, Appellees asserted that the Rawdins should not be permitted to offer two experts on the standard of care, as such testimony was cumulative. Brief in Support of Defendants' Motion in Limine to Preclude Plaintiffs' Expert, Nancy Futrell, M.D., From Offering Any testimony on the Issue of Standard of Care, 8/24/2012, at n. 2.

On August 29, 2012, the trial court heard arguments on this motion, and on August 31, 2012, the trial court entered an order. In that order, the trial court denied Appellees' motion on the basis of 40 P.S. § 1303.512, but precluded the testimony of two experts on the standard of care as being cumulative. Order, 9/4/2012. The trial court ordered further that the Rawdins notify Appellees whether they would present the testimony of Dr. Futrell or Dr. Genecin as their expert for standard of care. On September 5, 2012, the Rawdins notified Appellees that they would present the testimony of Dr. Genecin for standard of care and would use Dr. Futrell for "other topics which were the subject of her two reports." Letter from Mr. Morris to Mr. Fitzpatrick, 9/5/2012. Specifically, Dr. Futrell still would testify on issues related to causation. On September 7, 2012, the trial court denied the Rawdins' oral motion for reconsideration.

The jury was selected on September 7, 2012, and trial began on September 10, 2012. Dr. Genecin testified on September 11, 2012. During his testimony he opined that based on Mrs. Rawdin's history,

what she came in with, which included garbled speech and feeling of dizziness, that the differential diagnosis method required that [Dr. Real] consider transient ischemic attack, or TIA, as a possible explanation, and that he refer her for immediate workup of that condition for the reason that early diagnosis is critical, because TIA is so often followed by stroke. … She needed to be promptly referred to a hospital for neurologic workup and for assessment of possible TIA.

N.T., 9/11/2012, at 65.

He further opined that Dr. Real violated the standard of care by failing to consider TIA as a possible cause of Mrs. Rawdin's complaints. Dr. Genecin also was asked, and testified that in his opinion, within a reasonable degree of medical certainty, the proper neurological workup for a suspected TIA "would have demonstrated that [Mrs. Rawdin] had critical narrowing of that right internal carotid artery" and could have avoided the stroke. N.T., 9/11/2012, at 69-70.

Appellees objected to the fact Dr. Genecin testified as to causation and asked the trial court to preclude Dr. Futrell from testifying about this subject. The Rawdins argued that Dr. Futrell was going to testify about treating patients with strokes, an area of her specialty, as well as rebut the testimony of Appellees' neurosurgical expert, Dr. Christopher Loftus. The trial court ruled that Dr. Futrell would not be permitted to testify about "anything that's cumulative to what Dr. Genecin testified to." Id. at 75. Dr. Futrell testified on September 12, 2012. Dr. Futrell testified about the significant disabilities caused by Mrs. Rawdin's stroke. She also rebutted the report of Dr. Loftus.

With this background in mind, we set forth the applicable law and considerations for a trial court's ruling on the admissibility of evidence.

The admissibility of evidence is a matter addressed solely to the discretion of the trial court and may be reversed only upon a showing that the court abused its discretion. Thus our standard of review is very narrow.... To constitute reversible error, an evidentiary ruling must not only be erroneous, but also harmful or prejudicial to the complaining party.

Klein v. Aronchick, ___ A.3d ___, 2014 WL 46648, at 3 (Pa.Super. filed January 7, 2014). "The court may exclude relevant evidence if its probative value is outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence." Pa.R.E. 403.

The trial court offered the following rationale for limiting the Rawdins to one expert.

There was only one defendant doctor in this case. More than a week before trial, the court issued its order limiting each Party to one expert on the standard of care and one expert on causation. [The Rawdins] could have presented Dr. Futrell as their expert on both the standard of care as well as causation, but did not. [The Rawdins] could have sought leave to amend Dr. Genecin's expert report on the standard of care, but did not. [The Rawdins] could have presented Dr. Genecin's expert opinion only on the standard of care and Dr. Futrell's expert opinion on causation, but did not. Not only did [the Rawdins'] chosen expert on the standard of care, Dr. Genecin, also testify on causation, Counsel specifically asked him for clarification of his opinion on causation to a reasonable degree of medical certainty. Finally, although not controlling, the undersigned notes on review that the jury never reached the issue of causation, determining first and foremost that Dr. Real did not violate the standard of care in his diagnosis and treatment of Mrs. Rawdin and, therefore, was not negligent. This court did not abuse its discretion in limiting the testimony of Dr. Futrell.

Trial Court Opinion, 8/21/2013, at 11-12 (citations to record omitted).

The Rawdins argue that "Dr. Futrell's testimony would have been from a different perspective and might have carried greater weight with the jury[.]" The Rawdins' Brief at 19. The Rawdins also argue that Dr. Futrell would have been able to testify to two areas of negligence not covered by Dr. Genecin's report: issues with Mrs. Rawdin's cholesterol and the treatments available after the 2003 MRI. Id. at 20.

The Rawdins direct us to consider Oxford Presbyterian Church, v. Weil-McLain Co., Inc., 815 A.2d 1094 (Pa.Super. 2003) and Takes v. Metropolitan Edison, Co., 655 A.2d 138 (Pa.Super. 1995), reversed on other grounds, 695 A.2d 397 (Pa. 1997). In both cases, this Court concluded that the trial court did not err or abuse its discretion when it permitted two experts to testify as to the cause of a fire where one expert held a Ph.D. in electrical engineering and the other was a power station foreman or firefighter. Specifically, this Court concluded that the two experts could testify from different perspectives. Oxford, 815 A.2d at 1101 ("Our review of Keegan's testimony reveals, however, that it went into areas Dr. Allen did not explore because Keegan testified from the perspective of a firefighter.").

We recognize that neither case requires a trial court to permit two experts with different qualifications to testify; rather, the cases held that it was not error for the trial court to permit two experts to testify who have different qualifications and would testify from different perspectives. In this case, Dr. Futrell would have been able to offer standard of care testimony on areas not covered by Dr. Genecin.

Moreover, to the extent that Appellees suggest that the Rawdins could have amended Dr. Genecin's report to cover those areas (Appellees' Brief at 16), such a claim fails to account for the fact that the Rawdins only found out they would not be permitted to present Dr. Futrell in this capacity on the eve of trial. Dr. Futrell filed her expert reports on September 6, 2009 and July 3, 2011. Dr. Genecin filed his reports on December 7, 2005 and September 29, 2009. The Rawdins did not find out they would be limited to just one of these experts on each issue until August 31, 2012. Thus, counsel for the Rawdins had prepared for years believing they would be calling both experts to testify consistent with their reports. Clearly, the Rawdins did not have sufficient time to file an amended report, as Appellees suggest. Accordingly, the Rawdins suffered harm in being unable to present the full testimony of both experts as they had been prepared to do up until moments before trial. See American Future Systems, Inc. v. BBB, 872 A.2d 1202, 1212 (Pa.Super. 2005) ("To constitute reversible error, an evidentiary ruling must not only be erroneous, but also harmful or prejudicial to the complaining party."). Accordingly, we hold that under these circumstances, the trial court erred in denying the Rawdins a new trial.

Counsel for Appellees then compounded this error through his conduct during closing arguments.[5] During his closing argument, counsel for Appellees made the following statement. "Dr. Futrell never expressed an opinion -- the stroke expert never expressed an opinion about whether or not the signs and symptoms on [November 1, 2004] were suspicious for a TIA." N.T., 9/13/2012, at 92. Counsel for the Rawdins immediately objected and a discussion occurred at sidebar. The trial court did not tell the jury whether that objection was sustained and did not immediately offer any curative instructions. During the Rawdins' rebuttal argument, counsel offered the following.

I just want to clear up a few things that were said by counsel for Dr. Real.
The first one I want to clear up is he commented that Dr. Futrell did not testify on whether or not this was a TIA on November 1, '04. There was a reason for that. It was decided before trial that Dr. Futrell would testify only on the issues that she did testify about and that Dr. Genecin would cover that, rather than have multiple experts testify on the same thing. That's the reason for that.

N.T., 9/13/2012, at 98-99.

We find the case of Siegal v. Stefanyszyn, 718 A.2d 1274 (Pa.Super. 1998), instructive in considering this issue. In that case, Mrs. Siegal suffered from a series of eye problems due to Graves' Disease and treated with many doctors over a number of years. Eventually, Dr. Stefanyszyn performed two eye surgeries to treat her double vision. Because of complications she suffered after those surgeries, Mrs. Siegal filed a medical malpractice action against Dr. Stefanyszyn.

Counsel for Dr. Stefanyszyn obtained an expert opinion from Dr. Shore who opined that Dr. Stefanyszyn's treatment of Mrs. Siegal fell below the standard of care. It turned out that Dr. Shore had previously treated Mrs. Siegal. Mrs. Siegal sought to introduce Dr. Shore as a fact witness; thus, counsel for Dr. Stefanyszyn filed a motion in limine to preclude Dr. Shore from offering standard of care testimony. That motion was granted and Dr. Shore's testimony was limited to factual matters. The jury trial lasted 17 days.

Despite the motion in limine, counsel for Dr. Stefanyszyn made the following comment during his closing argument to the jury.

But you know; if Mary Stefanyszyn - They really felt that Mary Stefanyszyn had committed malpractice or did not get informed consent, you would have heard that from our friend Dr. Shore. [Dr. Shore] was the operating surgeon … He came down here. And they limited him to CAT scans for which he's not an expert. Came down to testify to CAT scans.
Do you think if John Shore really felt that Mary Stefanyszyn had done something wrong that [Mr.] Siegal would let him walk out of this courtroom without saying so? The answer is no.

Siegal, 718 A.2d at 1276 (quoting trial transcript).

Counsel for Mrs. Siegal immediately objected, the objection was sustained, but no immediate curative instruction was given. A curative instruction was given after the jury's lunch break, wherein the trial court told the jury that they were not permitted to "hold it against" Mrs. Siegal that Dr. Shore did not offer an opinion as to whether Dr. Stefanyszyn committed medical malpractice. Id. at 1277.

On appeal, this Court held that "[d]efense counsel's reference to the absence of opinion testimony of [Mrs. Siegal's] witness was improper and outrageous, and so polluted the jury that the effect could not be cured by the curative instruction that was given." Id. Thus, this Court granted Mrs. Siegal a new trial on this basis. The Siegal Court cited to commentary penned by the late Justice Green of the Pennsylvania Supreme Court in Holden v. Pennsylvania Railroad Co., 32 A. 103 (Pa. 1895).

The comments of counsel complained of were of the most offensive and reprehensible character, not sustained by any evidence in the cause and justly deserving the severe censure of the court. We can discover nothing to palliate them in the least degree, and inasmuch as there was no other efficacious remedy available to correct the mischief done, it was the plain duty of the court to withdraw a juror and continue the cause [resulting in a new trial]. Many judges are in the habit of doing this upon proper occasion, and that practice deserves to be widely extended, so that counsel who indulge in the habit of making such comments, may be properly admonished that they cannot do so except at severe cost to their clients and themselves.

Siegal, 718 A.2d at 1277; see also, Poust v. Hylton, 940 A.2d 380 (Pa.Super. 2007) (same).

As in Siegal, there is no question that counsel's statement about Dr. Futrell was both "improper" and "outrageous." Counsel himself filed the motion in limine to prohibit Dr. Futrell from offering an opinion about whether Dr. Real should have recognized Mrs. Rawdin's symptoms on November 1, 2004 as a TIA. Thus, counsel's actions are inexcuseable, and we remind the trial court that it was required to do everything in its power to cure the situation.

Whether remarks by counsel warranted a new trial requires a determination based upon an assessment of the circumstances under which the statements were made and the precaution taken by the court and counsel to prevent such remarks from having a prejudicial effect. It is the duty of the trial judge to take affirmative steps to attempt to cure harm. However, there are certain instances where the comments of counsel are so offensive or egregious that no curative instruction can adequately obliterate the taint.

Poust, supra, at 386 (emphasis in original).

We need not reach any conclusions about whether the trial court's remedy was sufficient under these circumstances as we have already determined that the Rawdins are entitled to a new trial on the basis of the trial court's abuse of discretion in limiting them, at the last minute, to one expert. Accordingly, we vacate the judgment, reverse the post-trial motion denying a new trial, vacate the motion in limine, and remand for a new trial..

Judgment vacated.

Order denying post-trial motion for new trial reversed. Motion in limine vacated.

Case remanded for new trial. Jurisdiction relinquished. Judge Ott concurs in the result.

Judgment Entered.


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