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.
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.
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
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
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
[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
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
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.
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
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.
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
Appellants' Br. at 4-5 (reordered for ease of analysis).
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
Wage Loss Claim
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
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
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)).
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);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.
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.
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. 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. 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.
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. 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
Crespo's Marijuana Use and ...