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[U] Estate of Marsh v. Bowman's Stove & Patio, Inc.

Superior Court of Pennsylvania

March 10, 2014

THE ESTATE OF LARRY D. MARSH, (DECEASED), BY SHERRY A. MARSH, EXECUTRIX, AND SHERRY A. MARSH, INDIVIDUALLY, Appellant
v.
BOWMAN'S STOVE AND PATIO, INC., Appellee

NON-PRECEDENTIAL DECISION

Appeal from the Order January 28, 2013 in the Court of Common Pleas of Lancaster County Civil Division at No.: CI-10-02155

BEFORE: PANELLA, J., MUNDY, J., and PLATT, J. [*]

MEMORANDUM

MUNDY, J.

Appellant, Sherry A. Marsh, in her own right and as executrix of the estate of her late husband, Larry D. Marsh, appeals from the January 28, 2013 order granting the motion of Appellee, Bowman's Stove and Patio, Inc. (Bowman), to exclude her medical expert testimony, denying her continuance request, and dismissing her complaint. After careful review, we reverse and remand for proceedings consistent with this memorandum.

We summarize the relevant factual and procedural history of this case as follows. On July 2, 2010, Larry Marsh and Appellant filed a complaint against Bowman, alleging that an overhead arbor built of wooden beams collapsed and injured Marsh while he was shopping at Bowman's store on March 8, 2008.[1] On July 23, 2010, Bowman served interrogatories on Appellant, requesting expert reports pursuant to Pennsylvania Rule of Civil Procedure 4003.5. At that time, Appellant provided "[a] final determination of the witnesses to be called at trial ha[ve] not yet been made. At least one medical provider will [] be called to testify." Bowman's Motion in Limine, 1/24/13, Exhibit B. Appellant also directed Bowman to view the "medical records and reports already produced." Id.

On November 22, 2011, Appellant filed a pre-trial conference memorandum in which she identified Dr. Perry Argires, Marsh's neurosurgeon, as a witness who would testify as to Marsh's injuries and the treatment he received. Dr. Argires would also opine as to causation. Within the memorandum, Appellant identified a report prepared by Dr. Argires, dated March 13, 2009, as an expert report submitted under Pa.R.C.P. 4003.5. The trial court entered an order directing the parties to complete discovery by July 1, 2012, and subsequently scheduled the trial to begin on January 28, 2013.

On January 15, 2013, 13 days prior to trial, Appellant notified Bowman that she was having issues obtaining the deposition testimony of Dr. Argires. Appellant's Response to Bowman's Motion in Limine, 1/30/13, at 2. Upon receiving such notification, Bowman "declined to reschedule [the trial,] and [Appellant] was forced to try to find another doctor on short notice." Id. On January 16, 2013, Appellant retained a new medical expert, Dr. Bernard Zeliger. Subsequently, on January 17, 2013, Appellant provided Bowman with Dr. Zeliger's curriculum vitae, and Bowman agreed to accept Dr. Zeliger's testimony if a report was provided to its office by Monday, January 21, 2013. Id.; Bowman's Motion in Limine, 1/24/13, at 2. Bowman requested Dr. Zeliger's report by January 21, 2013, because its medical expert, Dr. Joel W. Winer, was being deposed on January 22, 2013.

As Monday, January 21, 2013, was a federal holiday, Appellant did not provide Dr. Zeliger's report to Bowman until Tuesday, January 22, 2013.[2]Appellant's Brief at 13. Bowman received the report at approximately 1:34 p.m., a few hours before Dr. Winer's deposition. Bowman's Reply to Concise Statement, 3/14/13, at 2; Bowman's Motion in Limine, 1/24/13, at 2. Bowman proceeded to conduct Dr. Winer's deposition on January 22, 2013. On January 23, 2013, Appellant conducted Dr. Zeliger's trial deposition, which Bowman attended. Bowman noted its objection to Dr. Zeliger's testimony on the record prior to the commencement of the deposition.

On January 24, 2013, Bowman filed a motion in limine seeking to preclude Dr. Zeliger's testimony, claiming that: 1) Appellant failed to identify Dr. Zeliger as an expert witness in answers to interrogatories or document requests; 2) Appellant did not identify Dr. Zeliger as an expert witness prior to the trial court's July 1, 2012 discovery deadline; and 3) Bowman's medical expert and counsel did not have adequate time to review and respond to Dr. Zeliger's report before Dr. Winer's deposition was conducted. Id. at 3.

On January 28, 2013, the date scheduled for trial, the trial court held oral argument on Bowman's motion in limine. Following argument, the trial court granted Bowman's motion to exclude Dr. Zeliger's medical testimony. Appellant subsequently requested a continuance of the trial, which the trial court denied. Bowman then moved for a compulsory nonsuit, which the trial court granted, as Appellant conceded that she could not proceed to trial without Dr. Zeliger's testimony. On January 30, 2013, Appellant filed a motion for reconsideration, which the trial court denied on February 25, 2013. On February 26, 2013, this timely appeal followed.[3]

On appeal, Appellant raises the following issues for our review.

(1) Was it [an] error of law and an abuse of discretion to grant [Bowman's] [m]otion in [l]imine to exclude the testimony of Appellant['s] medical expert[, Dr. Zeliger,] on causation?
(2) Was it [an] error of law and an abuse of discretion to deny [] Appellant['s] [m]otion for a [c]ontinuance to allow sufficient time for the parties to review the expert testimony of the Appellant['s] late[-]acquired medical expert?
(3) Was it [an] error of law and an abuse of discretion to grant [Bowman's] motion to dismiss because receiving [] Appellant['s] expert report a day later than [Bowman] originally wanted allegedly caused incurable prejudice?

Appellant's Brief at 4.

Instantly, Appellant raises three interrelated questions of law. The crux of Appellant's argument is that the trial court erred in imposing a discovery sanction upon Appellant that was the functional equivalent of dismissing her underlying cause of action. Accordingly, we will address Appellant's claims concomitantly.

Where a discovery sanction results in the effective dismissal of a case, it is well settled that our standard of review is stringent. Anthony Biddle Contractors, Inc. v. Preet Allied Am. St., LP, 28 A.3d 916, 926 (Pa. Super. 2011); see also Croydon Plastics Co., Inc. v. Lower Bucks Cooling & Heating, 698 A.2d 625, 629 (Pa. Super. 1997) (noting that "although the sanction in question precluded [appellant] from introducing expert testimony, but did not altogether dismiss [its] case, we will review the [] appeal as if the trial court dismissed [its] complaint [as t]his Court recently held that such heightened review is appropriate when scrutinizing an order which is tantamount to dismissal in that it leads to [] judgment being granted against the sanctioned party[]"), appeal denied, 717 A.2d 1028 (Pa. 1998); Steinfurth v. LaManna, 590 A.2d 1286, 1288 (Pa. Super. 1991) (concluding that this Court should "strictly scrutinize" the trial court's decision to preclude appellants from introducing expert testimony because such a sanction was tantamount to dismissal of appellants' action).

Generally, imposition of sanctions for a party's failure to comply with discovery is subject to the discretion of the trial court, as is the severity of the sanctions imposed. The trial court's discretion, however, is not unfettered. [W]hen a discovery sanction is imposed, the sanction must be appropriate when compared to the violation of the discovery rules. Because ...

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