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Crespo v. Hughes

Superior Court of Pennsylvania

July 18, 2017


         Appeal from the Judgment entered June 21, 2016 In the Court of Common Pleas of Philadelphia County Civil Division at No(s): July Term 2012 No. 3490

          BEFORE: PANELLA, J., SHOGAN, J., and RANSOM, J.


          RANSOM, J.

         Appellants, William B. Hughes, M.D., Hughes & Hensell Associates, P.C., and Temple University Hospital, Inc., appeal from the judgment entered June 21, 2016, in favor of Appellees, Antonio Crespo in the amount of $4, 679, 676.00 and Edward Torralvo in the amount of $538, 000, following a twelve-day jury trial finding Appellants liable for medical malpractice. We affirm in part but remand for a new trial limited to damages attributable to Appellee Crespo.

         We adopt the following factual background from the trial court's 1925(a) opinion.

On the evening of June 16, 2011, [Appellees] Crespo and Torralvo were power washing a brick wall when, despite using protective gear, some of the hydrofluoric acid solution they were using made contact with their hands. The next day, June 17, 2011, [Appellees'] hands began to itch; this itching developed into slight painful sensations. They proceeded to the Temple University Hospital ("TUH") emergency room that afternoon at around 2:00 p.m.
The burn unit at TUH was consulted, and attending burn specialist William Hughes, M.D. formulated a treatment plan for both patients. The treatment plan included initial treatment for pain management of the affected areas of the digits by injection of lidocaine. The treatment plan also included injection of calcium gluconate into the affected digits. The calcium gluconate was injected to counteract the hydrofluoric acid.
Crespo's affected digits were his left index finger and his left middle finger (his second and third digits). Those two fingers, though itching and having slight painful sensations, had appeared normal prior to the injections of calcium gluconate. Shortly after the injections, Crespo's two fingers became discolored, weeping and bleeding from the injected areas.
Torralvo, after having seen the effects of the injections of calcium gluconate on Crespo's fingers, terminated treatment after receiving some of the proposed injections. Crespo was discharged from the hospital[, ] and Torralvo was either discharged or left the hospital.
Crespo's second and third digits became black and necrotic over the coming days, and they required partial amputation at or around the first knuckle away from the palm. Torralvo complained of pain after his limited set of injections, and he received surgery to remove a necrotic portion of his finger … reducing the mass and diameter of his index finger somewhat, especially towards the tip of the finger. They both complain of ongoing neurological injuries, with pain at the sites of the surgeries, especially with contact.
[Appellees'] expert on standard of care and causation, Dr. Mosier, testified that treatment of the areas affected with a calcium gluconate topical gel would have been within the standard of care on these facts, but injecting calcium gluconate into the affected digits, especially in this volume, was outside the standard of care on these facts, due to the risk of increased pressure cutting off blood flow to the digits. Moreover, Dr. McClellan, [Appellees'] treating physician for the amputations and excisions after the injuries occurred, also testified to causation as it pertained to his treatment of Crespo. [Appellee] Crespo's psychiatric expert, Dr. Tereo, testified to Crespo's state of mind before and after the injuries occurred. [Appellants] offered Dr. Lozano as an expert on standard of care and causation and Dr. Toborowsky as a psychiatric expert. Relevant experts are discussed below in this section.
Crespo had significant pre-existing injuries to his back, which, at the time of his injuries giving rise to this suit, had prevented him from doing hard labor. However, prior to the injuries giving rise to this suit, he had been a "cuatro" guitarist[. A] cuatro guitar is a kind of stringed instrument popular in Puerto Rico. Crespo had played [with] the fingers of his left hand to place on the strings to obtain the notes; Crespo's left hand was his fret hand. His right hand was his "pick hand." The amputations of the fingers at or around the first knuckle on his fret hand affected his ability to obtain the notes. Crespo testified that after the amputations, despite great effort, he was no longer able to play the cuatro with any significant musical ability. Crespo's former music manager, David LaPonte ["Laponte"], testified at trial as to Crespo's former ability, album, and fee arrangements. Charlie Cruz ["Cruz"], a prominent Puerto Rican vocalist and band leader, testified as to Crespo's abilities and Cruz's experience with Crespo in his band, as well as the fee arrangements.
Specifically, the testimony, viewed in a light most favorable to [Appellee] Crespo, was as follows: (1) Cruz would receive a certain lump sum for a show; (2) Cruz would pay a portion of that lump sum to Crespo's music manager, [LaPonte], for Crespo's performance, and (3) Laponte would use the money to build Crespo's "brand" through promotion, travel, music production, and various media appearances, much of which was documented in the exhibits.
The specific dollar value that Cruz testified to was as follows: "Sometimes three, five [shows] a month. I would pay him between $1, 500, sometimes $1, 000, sometimes $2, 000. Depends on the venue, how much I get paid, I pay the musicians" N.T., 2/4/2015, Cruz, at 68. Cruz later clarified by answering "yes" to a question as to whether the money went to management. Id.
In addition to the testimony just described, the jury viewed a music video produced to feature Crespo playing his cuatro. [Appellees'] [v]ocational expert Robert Cipko, Ph.D. and economist David Hopkins testified as to income and lost wages.
Dr. Cipico, Crespo's vocational expert, testified to an hourly income range, then summed the hourly rate to an annual income; from $49, 379 at the median for Philadelphian musicians and vocalists to $142, 750 in the top ten percent of that same class, see N.T., Cipko, 2/3/16, at 82-84, less the residual earning capacity in the range of $16, 230 in the bottom ten percent of entry level cashiers to $17, 390 in the bottom twenty percent of cashiers, see id. at 88. Dr. Cipko also testified to other ranges such as slightly higher annual incomes for Pennsylvania musicians and vocalists, and slightly higher ranges for other entry level low physical labor employment.
Mr. Hopkins, Crespo's economist, testified to a total work-life lost earning capacity of between $962, 321 to $6, 311, 287, depending on retirement age, projected income less residual earning capacity, and adjustments for the time-value of money and interest. N.T., Hopkins, 2/4/2016, at 43. The higher figure was a result of using, among other factors, the higher range from Dr. Cipko for musicians and vocalists in Philadelphia (90thpercentile), a retirement age of 70, and a discount rate to present value using a rate of 2.5 %. Id.
The jury, given its verdict, apparently did not find the evidence sufficient to support the higher range of the wage loss claim. The jury ultimately concluded on the basis of the evidence that Crespo was entitled to recover for his lost future earnings in the amount of $2.262 million dollars. The jury's finding for the lost wages claim was well within the range of the testimony of Dr. Cipko and Mr. Hopkins.
The remainder of the verdicts were for pain, suffering, disfiguration, and future medical care of Crespo, and pain, suffering and disfiguration of Torralvo.

Trial Ct. 1925(a) Op. ("TCO"), 9/2/2016, at 2-7 (citations modified).

         Appellants timely filed a post-trial motion on February 22, 2016, requesting a new trial, or in the absence of a new trial, remittitur on the ground that the jury verdict was excessive. Following additional briefing, the post-trial motion was denied by order and memorandum on June 21, 2016. See Order and Memorandum, 6/21/2016. The court denied Appellants' motion to mold the verdict and granted Appellees' motions to mold the verdict to include delay damages. See Order, 6/21/2016. On June 21, 2016, the court entered judgments on the verdicts, including delay damages, in favor of Appellees as described above.

         In July 2016, Appellants filed a post-sentence motion to strike the judgment, which the trial court denied, and filed a supersedeas bond to stay execution pending the outcome of the appeal. Thereafter, Appellants timely filed their notice of appeal and 1925(b) statement. The court issued a responsive opinion.

         On appeal, Appellants raise the following issues:

1. Did the court err in denying [Appellants'] pre-trial motion in limine seeking to preclude [Appellee] Crespo's wage loss claim?
2. Did the court err in granting [Appellee Crespo's] motion in limine seeking to preclude references to [his] marijuana use and child support orders?
3. Did the court abuse its discretion when it permitted "fact witnesses, " Dr. McClellan, Charlie Cruz, and David Laponte to offer expert opinions at trial?
4. Did the court err in not permitting [Appellant] Hughes and defense expert Lozano from addressing pathology findings that were raised and/or referenced by treating physician, Dr. McClellan?
5. Did the court err in allowing [Appellants'] standard of care expert, Dr. Mosier, to testify outside the scope of his pretrial report?
6. Did the court err in limiting the testimony of defense expert, Dr. Toborowsky?
7. Did the court err in permitting cross-examination of [Appellant] Dr. Hughes with literature from 2015?
8. Did the court err in its handling of [Appellee Crespo's] criminal conviction?
9. Did the court err in denying [Appellants'] motion for remittitur?

Appellants' Br. at 4-5 (reordered for ease of analysis).

         On appeal, Appellants contend that the verdicts are so excessive that a new trial is warranted. In addition, they contend that the trial court made several errors of law in ruling on motions in limine, handling objections, and charging the jury that affected the outcome of the trial. Appellants' Br. 8-9. We will address these claims seriatim.

         1. Wage Loss Claim

         In their first issue, Appellants maintain that the court erred in denying their pre-trial motion in limine to preclude the wage loss claim. Appellants' Br. at 18; 1925(b) statement, 7/29/2016, at 1. According to Appellants, Crespo had earned income as a construction worker from 2001 to 2008, until injuring his back in an unrelated incident. However, Appellants claim that there was no documentary evidence to support his contention that he worked as a musician in 2009, 2010, or 2011, prior to his injury in this matter. Appellants argue that Crespo never filed any tax returns reporting income he allegedly earned as a musician.[1]

         The court effectively denied Appellants' pre-trial motion, noting that Appellants could cross-examine the witnesses, and utilize evidence such as Crespo's lack of reported income on his tax returns, to defend against the wage loss claim. See N.T., 1/29/2016, at 34.

A trial court's decision to grant or deny a pre-trial motion in limine is subject to an evidentiary abuse of discretion standard of review. "Questions concerning the admissibility of evidence lie within the sound discretion of the trial court, and we will not reverse the court's decision absent a clear abuse of discretion. 'An abuse of discretion may not be found merely because an appellate court might have reached a different conclusion, but requires a manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support as to be clearly erroneous.'" Grady v. Frito-Lay, Inc., 839 A.2d 1038, 1046 (Pa. 2003). In addition, to constitute reversible error, an evidentiary ruling must not only be erroneous, but also harmful or prejudicial to the complaining party.

Parr v. Ford Motor Co., 109 A.3d 682, 690-91 (Pa. Super. 2014) (internal quotation marks and citations omitted, formatting modified) (quoting Keystone Dedicated Logistics v. JGB Enterprises, 77 A.2d 1, 11 (Pa. Super. 2013) (internal citations omitted)).

         In this Commonwealth, this Court has consistently held that the purpose of damages is to compensate victims to the full extent of the loss sustained as a direct result of the injury. Kaczkowski v. Bolubasz, 421 A.2d 1027, 1029 (Pa. 1980). Lost future earnings is a distinct item of damages, which may be awarded if properly proved and not left to mere conjecture. Helpin v. Trustees of Univ. of Pa., 10 A.3d 267, 270 (Pa. 2010) (discussing Kaczkowski, 421 A.2d at 1029 n.5, 1031, 1033-33);[2]see also Serhan v. Besteder, 500 A.2d 130, 137-138 (Pa. Super. 1985). "[T]he relevant inquiry in a personal injury action is whether and to what extent the plaintiff's economic horizons have been shortened." Lupkin v. Sternick, 636 A.2d 661, 664 (Pa. Super. 1994), aff'd, 667 A.2d 13 (Pa. 1995) (citing Ruzzi v. Butler Petroleum Co., 588 A.2d 1, 6 (Pa. 1991); Serhan, 500 A.2d at 138). A plaintiff has the burden of presenting "sufficient data from which the damages can be assessed with reasonable certainty." Kearns v. Clark, 493 A.2d 1358, 1364 (Pa. Super. 1985) (quoting Gordon v. Trovato, 338 A.2d 653, 657 (Pa. Super. 1975)). "There must be some evidence from which a jury can reasonably infer that earning power will probably be reduced or limited in the future." Kearns, 493 A.2d at 1364.

         In response to the pre-trial motion in limine, Appellees maintained that Crespo's pre-trial deposition established that he had a career as a musician and that there was sufficient evidence to present the wage loss claim to the jury based on reports of vocational and actuarial experts that proposed to testify as to Crespo's loss of potential earning capacity. See Plaintiffs' Response to Motion to Preclude Wage Loss Claim, 1/28/2016, at 3. In his deposition, Crespo had testified that he earned close to $22/hour as a musician; however, he could not specifically indicate how much he was earning on an annual basis. See id., at Exhibit D: Crespo Dep., 12/23/2013, at 19. Further, Crespo stated that he had an oral agreement with Charlie Cruz to get paid for his performances "numerous amounts of times." Id. at 21.

         In addition, Appellees' expert report from their vocational expert, Dr. Robert Cipko, provided pertinent wage calculations for a musician in the Philadelphia area. See Plaintiffs' Response to Motion to Preclude Wage Loss Claim, 1/28/2016, at 3; Exhibit B: Dr. Cipko Report, 3/23/2015, at 14.[3] Dr. Cipko opined that Crespo "cannot play chord progressions on the guitar now with just two fingers on the left hand and has lost the potential for earnings as a musician." Id. at 14-15.[4] Cipko's report also detailed how Crespo tried to return to truck driving but had a concern about safety "due to difficulty of operating a steering wheel." Id. Finally, David Hopkins, an actuary and economic expert provided further evidence that Crespo suffered a loss in earning capacity. His report estimated loss of earnings in the range of one to six million dollars. See Plaintiffs' Response to Motion to Preclude Wage Loss Claim, 1/28/2016, at 2, Exhibit E.

         Here, Appellees presented sufficient evidence that Crespo's economic horizons had been shortened as a direct result of his injury for his wage loss claim to go to trial. See Lupkin, 636 A.2d at 664; Kearns, 493 A.2d at 1364.[5] Accordingly, we discern no error of law or abuse of discretion in the trial court's denial of Appellants' pre-trial motion in limine to preclude the wage loss claim. See Parr, 109 A.3d at 690.

         2. Crespo's Marijuana Use and ...

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