HomeMy WebLinkAbout96-4556 Civil LARRY NORTON and
ALISA NORTON,
Plaintiffs
Vo
SHASHIKANT B. PATEL, M.D.,:
ANDREWS & PATEL
ASSOCIATES, P.C.,
ANASTASIUS O. PETER, M.D.,:
SUSQUEHANNA SURGEONS,
LTD., STEPHENSON
SWAMIDOSS, M.D., DEAN G.
TAYLOR, M.D., and
CYTOMETRY ASSOCIATES,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 96-4556 CIVIL TERM
ALISA NORTON, Individually
and as Executrix of the ESTATE
OF LARRY NORTON,
Deceased,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
Vo
CIVIL ACTION - LAW
KLAUS F. HELM, M.D., THE
HERSHEY MEDICAL CENTER,:
HIM G. KWEE, M.D.,
HARRISBURG HOSPITAL, and:
HOLY SPIRIT HOSPITAL,
Defendants
NO. 97-7057 CIVIL TERM
IN RE: MOTIONS FOR POST-TRIAL RELIEF BY
DEFENDANT, CYTOMETRY ASSOCIATES
BEFORE HOFFER, P.J., AND OLER, J.
OPINION and ORDER OF COURT
OLER, J., March 25, 2003.
In this complex professional negligence case,~ Defendant Cytometry Associates
has filed several post-trial motions following a jury trial at the conclusion of which it was
found liable for damages totaling approximately $3.2 million resulting from the death of
Larry Norton.2 This verdict was based on the findings that Defendant Cytometry, a
laboratory that conducts analyses of suspected cancer cells, had acted negligently in
analyzing specimen cells submitted on behalf of Mr. Norton and identifying those cells as
exhibiting lymphoma rather than leukemia and that this misinterpretation resulted in the
improper treatment of Mr. Norton for lymphoma rather than leukemia, the disease from
which he later died.
Defendant Cytometry's post-trial motions, which include a motion for judgment
N.O.V., a motion for a new trial, and a motion for remittitur, identify at least fifteen
assignments of error, encompassing the jury's findings as to each element of negligence,
the court's holdings at various stages in the proceedings as to the sufficiency of the
evidence, evidentiary rulings both before and during trial, and numerous other actions of
the court in this case.3
For the reasons stated in this opinion, the post-trial motions will be denied except
that the motion for remittitur will be granted.
STATEMENT OF FACTS
Although the parties disagree significantly as to the effects of the underlying
events of this case, they do not differ as to their basic chronology, which may be
summarized as follows:
~ This case was originally commenced as two separate actions, docketed at No. 96-4556
Civil Term and at No. 97-7057 Civil Term. The two actions were later consolidated for
purposes of discovery and trial at No. 96-4556 Civil Term. Order of Ct., May 29, 1998.
2 Mots. for Post-Trial Relief by Def., Cytometry Associates, filed Nov. 25, 2002.
3Id.
2
In January 1995, Larry Norton,4 who was then thirty-three years old,5 sought
medical attention at Andrews and Patel, P.C., after experiencing skin lesions on his face
and upper extremities, as well as weight loss and fevers.6 After several biopsies of his
skin were reported as exhibiting signs of lymphoma,7 in May 1995 Mr. Norton was
referred to Dr. Shashikant B. Patel, an oncologist with Andrews and Patel, P.C.8
Dr. Patel's examination of Mr. Norton included a physical assessment, which
revealed large lesions on various parts of his body and enlarged lymph nodes, a blood
test,9 which indicated the possibility of either lymphoma or leukemia,l° and a bone
marrow biopsy, which exhibited signs consistent with either type of cancer.~ Another
blood test conducted on June 7, 1995, by another physician at Andrews and Patel, P.C.,
also supported the conclusion that either lymphoma or leukemia was present.~2 Although
4 Larry Norton died shortly after the commencement of the original action in this
consolidated case. See supra note 1. Accordingly, although two parties are listed as
plaintiffs in this case, the court will use the term in its singular capacity, and, for purposes
of this opinion, all references to Plaintiff should be construed to mean Alisa Norton.
5 N.T. 269, 625, Trial, Nov. 4-8, 12-14, 2002 (hereinafter N.T. ~.
6 N.T. 619-27.
7 "Lymphoma is a cancer of the lymphocytes or lymphatic tissue that tends to begin in the
lymph nodes and then can spread to the bone marrow." N.T. 45.
8 N.T. 622-24. The specimens were sent to Dr. Klaus F. Helm, of the Hershey Medical
Center, who reported that the biopsies showed consistency with lymphoma. Id Dr. Helm
and the Hershey Medical Center were discontinued as defendants in this case. Order of
Ct., June 6, 2002.
9 The blood sample was sent to Harrisburg Hospital for testing. N.T. 630.
l0 "Leukemia is basically a cancer of the white blood cells in the bone marrow and begins
in the bone marrow and then involves the peripheral blood." N.T. 45.
~ N.T. 627-41. The bone marrow biopsy report was issued by Dr. Him G. Kwee, of
Harrisburg Hospital. N.T. 640. Dr. Kwee and the Harrisburg Hospital were discontinued
as defendants in this case. Order of Ct., July 3, 2002.
~2 N.T. 643-44.
3
the "provisional diagnosis" at this time was lymphoma, further testing was conducted for
the purpose of ruling out the possibility of leukemia. ~3
A lymph node biopsy was performed on Mr. Norton on June 27, 1995,TM and was
sent for testing to Dr. Stephenson Swamidoss, a pathologist with Holy Spirit Hospital.~5
Dr. Swamidoss, through "microscopic evaluation of the lymph node," was able to detect
malignancy consistent with cancer, but was unable to determine whether it exhibited
signs of leukemia or lymphoma.~6 To complete his diagnosis, and "to identify the cells
with more specificity," Dr. Swamidoss sent the specimen to Defendant Cytometry
Associates,~7 "a biotechnical laboratory . that employs scientists . . . to analyze,
identify and classify suspected cancer cells.., as an adjunct to the practice of medicine,"
for a "lymphoma/leukemia evaluation.''~8
The evaluation conducted at Defendant Cytometry involved a complicated
procedure known as flow cytometry, which encompasses several distinct processes.~9 In
circumstances in which a lymph node specimen is sent for a lymphoma/leukemia
evaluation, the first step is to "disaggregate" the specimen into a "single cell suspension,"
~3 N.T. 644-46.
~4 N.T. 646-49. For this procedure, Mr. Norton was referred to Dr. Anastasius O. Peter, of
Susquehanna Surgeons, Ltd., who conducted the biopsy. Id. Dr. Peter and Susquehanna
Surgeons, Ltd., were discontinued as defendants in this case. Order of Ct., Oct. 4, 2002.
~5 N.T. 649. Holy Spirit Hospital was discontinued as a defendant in this case. Order of
Ct., June 6, 2002.
16 N.T. 154-55.
~7 ld.
~8 N.T. 1155; Br. of Def., Cytometry Associates, in Supp. of Its Post-Trial Mots., dated
Jan. 30, 2003, at 2. The medical director of Defendant Cytometry was Dr. Dean G.
Taylor. N.T. 953-56, 1155-56. Dr. Taylor was discontinued as a defendant in this case.
Order of Ct., Feb., 28, 1997.
19 See N.T. 51,953-56, 1155-56, 1160-70.
4
in which the cells are separated from the specimen mass for analysis.2° Second, the single
cells are counted to obtain a proper quantity of cells for testing, and the requisite number
of cells are placed in solution into test tubes.2~ Third, "monoclone antibodies," which are
antibodies labeled with a fluorescent dye, are added to the tubes. These antibodies, after a
period of incubation, will "bind," or attach, to certain antigens that are found on cells.
Essentially, each type of antibody will "fit" only one type of antigen.22 Fourth, the
solutions are introduced into a "flow cytometer," in which the cells are made to course,
"one by one," through a "flow cell," or "gate," in which a laser beam is directed at the
cells. The effect of this beam on the cells is to produce specific wave patterns indicating
the presence, or lack, of certain antigens--those corresponding with the antibodies
introduced in step three.23 Finally, lab scientists interpret the diagrams produced by the
flow cytometer to determine whether the antigens present are consistent with either
lymphoma or leukemia.24
The results produced by the flow cytometer and the interpretation made by lab
scientists are dependent upon the "antibody panel" used by the lab)5 The term "antibody
panel," as used in this context, refers to the several types of antibodies used by the lab to
identify the presence of certain antigens in the cells)6 In other words, the cytometry lab,
in conducting a flow cytometric analysis, employs a set of different types of antibodies-
the antibody panel--and each of these antibodies corresponds and will attach to only
2o See id Dr. Gregory Thomas Stelzer, an expert for Defendant Cytometry, analogized
the "single cell suspension" to % string of pearls that's not hooked together but just
hanging down, with.., individual pearls being an individual cell." N.T. 953.
2~ See N.T. 51,953-56, 1155-56, 1160-70.
22 See id Prior to the addition of the monoclone antibodies, a "viability dye" is added to
allow the technicians to separate dead cells, the presence of which can corrupt the test
results, from the live cells. N.T. 969, 1155-56, 1160-70.
23 See id
24 See id
25 See N.T. 51-57, 953-56, 980-82, 1155-56, 1160-70.
26 See id
certain types of antigens.27 Because different cancers result in different patterns of
antigens, the antibody panel used in the analysis is critical to the determination of
whether a certain type of cancer is or is not present in a given sample.28
Defendant Cytometry employs a "protocol" that defines the antibody panel for
each type of evaluation.29 Although Dr. Swamidoss had indicated on a requisition form
that a lymphoma/leukemia evaluation should be done on the lymph node specimen from
Mr. Norton, technicians at Defendant Cytometry used an antibody panel "predominately
targeted at lymphoma" because the specimen submitted was a lymph node.3°
Following the performance of a flow cytometric analysis on the specimen
submitted on behalf of Mr. Norton, Keith Edward Shults, a laboratory scientist employed
by Defendant Cytometry, interpreted the data produced by the flow cytometer and
authored a report, titled "Lymphoma Leukemia Phenotyping Report" and dated June 30,
1995, which was sent to Dr. Swamidoss.3~ The report, under the heading "Technical
Interpretation," provided, in part, as follows:
Flow cytometric analysis.., demonstrates a homogenous population with
the combined characteristics of intermediate cell size and elevated CD45
antigen density consistent with an abnormal lymphoid cell. Independent
immunophenotypic analysis of this lymphoblastoid population identifies
the cells as T-lymphoid lineage in origin, expressing HLA-DR, CD4,[321
weak CD5 while lacking all other T and B cell antigens tested. The cells
lack CD33, CD14 ruling out a possible monocytic infiltrate ....
27 See id
28 See id
29 N.T. 1162.
3o N.T. 1175.
3~ N.T. 1173-74; see Def. Cytometry's Ex. 6, Trial, Nov. 4-8, 12-14, 2002 (hereinafter
Pl.' s/Def. Cytometry' s Ex. ~.
32 The abbreviation "CD" stands for "cluster designation," which relates to the presence
of certain antibodies, and "CD4" refers to a specific type of antibody that is commonly
present on T-cells but is seen in both T-cell lymphoma and leukemia. N.T. 1169, 1181-
82.
6
The above findings are consistent with that seen in a T-cell
lymphoma .... Since ph[en]otyping alone is unable to demonstrate
monoclonality, DNA has been extracted for study on the molecular level.
Histopathologic and clinical datap31 are required for conventional
classifications of this lymphoma in the Working Foundation.34
Mr. Shults testified that this report, and specifically the phrase "ruling out a possible
monocytic infiltrate," did not mean that the presence of leukemia had been ruled out.35 In
contrast, Dr. Swamidoss testified that he read the report as stating that leukemia was not
present in the sample.36 The phrase "DNA has been extracted for study on the molecular
level," was intended to indicate that Defendant Cytometry intended to conduct further
studies, through a process known as "gene rearrangement analysis," on the specimen.37
A gene rearrangement analysis, of the type conducted in this case, attempts to
identify whether the specimen exhibits "monoclonality,' which means that a sufficient
population of cells in the specimen exhibit the same B-cell or T-cell arrangement pattern,
a "hallmark of cancer.''38 Gene rearrangements occur in response to infections and alter
the surface proteins on cells. In a normal infection, many gene rearrangements will occur,
resulting in several different patterns--termed "polyclonality.''39 However, in
circumstances in which a malignant process is involved, a single cell that has itself
33 "Histopathologic" data refers to data obtained from microscopic review of the
specimen, a function generally performed by a pathologist, and "clinical" data refers to
data obtained from a physical examination and history of the patient, functions generally
performed by an oncologist. See, e.g., N.T. 653.
34 Def. Cytometry's Ex. 6.
35 N.T. 1174.
36 N.T. 159-60.
37 N.T. 198, 1224-25. Dr. Swamidoss did not request the additional testing through gene
rearrangement analysis. N.T. 198.
38 N.T. 1274-82.
39 ]d.
7
undergone a gene rearrangement will multiply exponentially, creating a single
identifiable population of cells with the same pattern--termed "monoclonality.''4°
Whether monoclonality is present can be detected through a "Southern blot
analysis," which involves the splitting of DNA segments and the use of "radio labeled
probes," which attach to those DNA segments that exhibit a certain gene rearrangement
and allow technicians to determine whether a distinct population of a cells with the same
rearrangement pattern appears.4~ A specimen with T-cell lymphoma, of the type with
which Mr. Norton was preliminarily diagnosed and that was suggested in Defendant
Cytometry's first report, does not exhibit signs of B-cell gene rearrangement but
commonly--but not always--shows signs of monoclonality with respect to T-cell gene
rearrangement.42
Before the completion of the gene rearrangement test, on July 3, 1995, Dr.
Swamidoss forwarded the first report issued by Defendant Cytometry to Dr. Patel with a
pathology report, which stated, in pertinent part, as follows:
Flow cytometric analysis reveals a T-cell lymphoma consistent with low to
intermediate grade neoplasm. Additional DNA studies at the molecular
level are being done by Cytometry Associates and a copy of their additional
findings will follow.43
According to the testimony of Dr. Patel, and of Dr. Swamidoss, the flow cytometry
report, with the pathology report, indicated that Mr. Norton had T-cell lymphoma, a
finding that was consistent with earlier lab reports and physical examinations.44
Based on these reports, and the immediate necessity of treating Mr. Norton, who,
according to Dr. Patel, was deteriorating rapidly in terms of his health, on July 5, 1995,
40 Id Dr. Ronald C. McGlennen, an expert for Defendant Cytometry, described a
monoclonal population of cells as "an Army of soldiers all dressed in the same uniform."
N.T. 1283.
4~ N.T. 1274-82.
42 N.T. 198-99, 1285.
43 Def. Cytometry's Ex. 10.
44 N.T. 194-96, 650-55.
Dr. Patel instituted a process known as "CHOP" chemotherapy, an eight-course treatment
regimen.45 After the first treatment on July 5, 1995, seven subsequent treatment dates
followed: August 2, 1995; August 31, 1995; September 28, 1995; October 30, 1995;
November 28, 1995; December 27, 1995; and January 29, 1995.
A second report, titled "B/T Cell Gene Rearrangement Analysis," was issued by
Defendant Cytometry and sent to Dr. Swamidoss on July 18, 1995.46 The report was
identified as a "Preliminary Report," and substantially repeated, under the heading
"Immunophenotyping Studies," the language from the first report:
Flow cytometric analysis.., demonstrates a homogenous population with
the combined characteristics of intermediate cell size and elevated CD45
antigen density consistent with an abnormal lymphoid cell. Independent
immunophenotypic analysis of this lymphoblastoid population identifies
the cells as T-lymphoid lineage in origin, expressing HLA-DR, CD4, weak
CD5 while lacking all other T and B cell antigens tested .... 47
Under the heading "Gene Rearrangement Analysis," the report provided, in part, as
follows:
High molecular weight genomic DNA was extracted from the isolated cells
and digested with three restriction endonucleases for Southern blot
analysis .... [N]o nongermline rearranged bands were seen ....
The inability to detect rearranged bands in this analysis suggests that
there is no monoclonal B-lymphoid population present in this
specimen .... Results for the T-cell receptor beta chain analysis will be
available in approximately one week. These results are not in and of
themselves diagnostic, but should be considered in the context of clinical
findings and histopathologic diagnosis for complete interpretation.48
According to the testimony of Dr. Swamidoss, because this report indicated the lack of B-
cell rearrangement, a finding that did not speak to the presence or lack of T-cell gene
45 N.T. 655-59.
46 The second and third reports were authored primarily by Dr. Jeanne Carr, the director
of molecular diagnostics at Defendant Cytometry in 1995. N.T. 1302. Dr. Carr did not
testify at trial.
47 Def. Cytometry's Ex. 6; see also supra note 33 (discussing histopathologic and clinical
data).
48 Def. Cytometry's Ex. 6.
9
rearrangement, which would be possibly indicative of a T-cell lymphoma, this report did
not contradict the earlier provisional diagnosis of lymphoma. Dr. Swamidoss forwarded
the second report issued by Defendant Cytometry to Dr. Patel.49
A third report, titled "B/T Cell Gene Rearrangement Analysis," was issued by
Defendant Cytometry and sent to Dr. Swamidoss on July 25, 1995. The report was
identified as a "Final Report," and repeated, under the headings "Immunophenotyping
Studies" and "Gene Rearrangement Analysis," the language from the second report,
quoted above.5° Following this material, the report provided, in part, as follows:
Hybridization of the DNA with a probe for the T cell receptor (TCR)
beta chain gene revealed a germline banding pattern. Negative control DNA
resulted in the appropriate germline banding pattern ....
The inability to detect rearranged bands in this analysis suggests
there is no population present with monoclonally rearranged TCR beta
chain DNA. These results do not support the immunophenotypic findings.
It should be noted that a review of 28 published papers revealed 11% of
acute T-lineage lymphomas did not contain detectable rearrangements of
the TCR gene. Another group of authors found a subset of seven peripheral
T-cell lymphomas which expressed restricted numbers of T-lineage
antigens and lacked TCR rearrangements. These results should be
considered in the context of clinical setting, immunophenotypic findings,
and histopathologic diagnosis for complete interpretation.5~
According to Dr. Swamidoss and Dr. Patel, to whom the report was forwarded, this
report, although noting an inconsistency in the findings between the immunophenotypic
and gene rearrangement studies, "reconcile[d] the differences" and indicated that,
because the "clinical setting," the physical examinations performed by Dr. Patel; the
"immunophenotypic findings," the initial flow cytometry test performed by Defendant
Cytometry; and the "histopathologic diagnosis," the microscopic analysis performed by
49 N.T. 663
50 Def. Cytometry's Ex. 6.
5~ Id (endnotes omitted).
10
Dr. Swamidoss, all supported the diagnosis of lymphoma, that diagnosis was still
correct. 52
The CHOP chemotherapy treatments, which initially showed some success, ended
on January 29, 1996, after which Mr. Norton was asked to return for a bone marrow
aspiration.53 After the bone marrow continued to show signs of malignancy, suggesting
that the chemotherapy had not produced a remission, Dr. Patel referred Mr. Norton to
Johns Hopkins Medical Center in March 1996 for an evaluation with respect to the
possibility of a bone marrow transplant.54 After conducting a bone marrow analysis and
flow cytometric testing, physicians at Johns Hopkins Medical Center concluded that Mr.
Norton suffered from acute leukemia--not lymphoma.55 Mr. Norton received "intensive"
chemotherapy treatment for leukemia; however, the lymphoma treatments, which could
not affect the presence of leukemia, had impaired Mr. Norton's ability to respond to the
appropriate treatment for leukemia.56 The new treatments were not effective in achieving
a remission, and a subsequent bone marrow transplant, after a search could produce no
matching donor, was similarly ineffective. Mr. Norton died on July 4, 1997.57
DISCUSSION
Motion for Judgment N.O.V. In its motion for judgment N.O.V., Defendant
Cytometry contends that Plaintiff failed to present sufficient evidence of the elements of
a negligence cause of action to support the jury's verdict. Generally, in order to recover
under a negligence theory of liability, the plaintiff must prove that "the defendant owed a
duty of care to the plaintiff, the defendant breached that duty, the breach resulted in
injury to the plaintiff, and the plaintiff suffered an actual loss or damage." Martin v.
Evans, 551 Pa. 496, 502, 711 A.2d 458, 461 (1998); see also Mitzel~klt v. Kamrin, 526
52 N.T. 199-204, 665-67.
53 N.T. 669-71.
54 N.T. 674-75.
55 N.T. 674-77.
56 S¢¢, e.g., N.T. 338-39, 435-37.
57 See, e.g., N.T. 438-42.
11
Pa. 54, 62, 584 A.2d 888, 891 (1990). Specifically, in its motion for judgment N.O.V.,
Defendant Cytometry alleges that Plaintiff failed to offer evidence to support the findings
of duty, breach, and causation,sa
Like a motion for a directed verdict, a motion for judgment N.O.V. may be
granted only when (1) "the movant is entitled to judgment as a matter of law" or (2) "the
evidence is such that no two reasonable minds could disagree that the outcome should
have been rendered in favor of the movant." Campo v. St. Luke's Hosp., 755 A.2d 20, 23
(Pa. Super. Ct. 2000), appeal denied, 564 Pa. 723,766 A.2d 1242 (2001).
With the first, the court reviews the record and concludes that even with all
factual inferences decided adverse to the movant the law nonetheless
requires a verdict in his favor, whereas with the second the court reviews
the evidentiary record and concludes that the evidence was such that a
verdict for the movant was beyond peradventure.
Id. (quoting Rohm & Haas Co. v. Continental Cas. Co., 732 A.2d 1236, 1247 (Pa. Super.
Ct. 1999), aff'd, 566 Pa. 464, 781 A.2d 1172 (2001)). In ruling on a motion for judgment
N.O.V., the court should give the findings of the jury the utmost respect, and the jury's
verdict should be overturned only in a "clear case." Birth Ctr. v. St. Paul Cos., 567 Pa.
386, 397-98, 787 A.2d 376, 383 (2001).
The "legal concept" of duty is a question of law that must be determined by the
court before the jury can consider whether the standard of care imposed by that duty has
been breached. Althaus ex rel. Althaus v. Cohen, 562 Pa. 547, 553, 756 A.2d 1166, 1169
(2000); Gutteridge v. A.P. Green Servs., Inc., 804 A.2d 643, 654-55 (Pa. Super. Ct.
2002). Although generally a party owes a duty only to those individuals with whom he or
she has a direct relationship, a party may be "subject to liability to [a] third person" with
whom he or she does not have a direct relationship if the party has "undertake[n],
gratuitously or for consideration, to render services to another which [the party] should
[have] recognize[d] as necessary for the protection of [the] third person." DiMarco v.
58 Mots. for Post-Trial Relief by Def., Cytometry Associates, filed Nov. 25, 2002, paras.
2-4, 15-17 (raising challenges to the sufficiency of the evidence with respect to the
elements of duty, standard of care, and causation).
12
Lynch Homes-Chester County, Inc., 525 Pa. 558, 560-61, 583 A.2d 422, 424 (1990)
(quoting Restatement (Second) of Torts § 324A (1965)). As the Supreme Court of
Pennsylvania has noted: "This is essentially a requirement of foreseeability." Can~el! v.
Allegheny County, 506 Pa. 35, 41,483 A.2d 1350, 1353-54 (1984), cited in DiMarco, 525
Pa. at 560-61, 583 A.2d at 424. A duty will be found--and a cause of action will exist--
only when the party's actions carry a risk of "foreseeable harm to a foreseeable class of
plaintiffs." Id. (quoting Kane v. Hartford,4ccident & Indem. Co., 159 Cal. Rptr. 446 (Cal.
Ct. App. 1979)). In addition to foreseeability, courts, in deciding whether to impose a
duty on the party for the protection of a third person, should also weigh several public
policy considerations: the "social utility" of the party's conduct, the "consequences of
imposing a duty" on the party, and the "overall public interest in the proposed solution."
,41thaus, 562 Pa. at 553, 756 A.2d at 1169; see also DiMarco, 525 Pa. at 560-63, 583
A.2d at 424-25 (holding that physician may be liable to infected third person for failure to
notify patient about communicable disease because physician could foresee danger to
third persons and because "the control of communicable diseases is... of the utmost
importance to the health and welfare of our citizens" as evidenced by statutes regulating
reporting of communicable diseases) (quoting DiMarco v. Lynch Homes-Chester County,
Inc., 384 Pa. Super. 463, 470, 559 A.2d 530, 533 (1989), aff'd, 525 Pa. 558, 583 A.2d
422(1990)).
In the present case, it appears that, because Defendant Cytometry undertook "to
render services" for Dr. Patel and Dr. Swamidoss for the benefit and protection of Mr.
Norton, considerations of foreseeability support the imposition of a duty on Defendant
Cytometry. Although Defendant Cytometry engages in contractual agreements only with
treating physicians--not patients--the analyses conducted by Defendant Cytometry are
for the sole benefit of patients. Defendant Cytometry's business is premised on analyzing
and identifying suspected cancer cells submitted on behalf of patients by their treating
physicians, and the reports produced by Defendant Cytometry are used by treating
13
physicians to further the diagnosis and treatment of their patients. 59 Further, because "the
only clients of [Defendant Cytometry] are medical professionals who specialize in the
diagnosis of cancers," Defendant Cytometry knew and could foresee that each analysis
that it conducted was intended for the benefit of a patient, meaning that its actions carried
a "foreseeable [risk of] harm to a foreseeable class" of patients.® See Can~ell, 506 Pa. at
41,483 A.2d at 1353-54 (quoting Kane, 159 Cal. Rptr. 446).
59 See, e.g., N.T. 112 ("[T]he clinician based his treatment on the pathologist's diagnosis.
The pathologist based his diagnosis on the flow cytometry."); N.T. 407-08, 1230; see
also Br. of Def., Cytometry Associates, in Supp. of Its Post-Trial Mots., dated Jan. 30,
2003, at 2 ("Cytometry Associates is a biotechnical laboratory.., that employs
scientists.., to analyze, identify and classify suspected cancer cells.., as an adjunct to
the practice of medicine, and the only clients of Cytometry Associates are medical
professionals who specialize in the diagnosis of cancers.").
6o Br. of Def., Cytometry Associates, in Supp. of Its Post-Trial Mots., dated Jan. 30,
2003, at 2 (emphasis added); see, e.g., N.T. 1230 (testimony of Defendant Cytometry's
expert Keith Edward Shults) ("All physicians rely on our interpretations. That is our
job."). The fact that Defendant Cytometry analyzes cell specimens for the ultimate
benefit of the patient distinguishes this case from those cited in the brief submitted by
Defendant Cytometry. See Caputo v. Compuchem Laboratories, Inc., Civ. A No. 92-6123,
1994 WL 100084 (E.D. Pa. Feb. 23, 1994), aff'd mem., 37 F.3d 1485 (3d Cir. 1994);
Can~ell, 506 Pa. 35, 483 A.2d 1350, Ney v. Axelrod, 723 A.2d 719 (Pa. Super. Ct.
1999); Tomko v. Marks', 412 Pa. Super. 54, 602 A.2d 890 (1992); see also Br. of Def.,
Cytometry Associates, in Supp. of Its Post-Trial Mots., dated Jan. 30, 2003, at 19-24
(discussing cases). The cases cited by Defendant Cytometry involve circumstances in
which a law enforcement agency or an employer submitted a specimen sample of a
suspect or an employee to a laboratory and the laboratory returned an allegedly incorrect
result, resulting in harm either to the suspect, through improper conviction, or to the
employee, through wrongful termination. See, e.g., Cantwell, 506 Pa. at 40, 483 A.2d at
1351; Ney, 723 A.2d at 722. In all these cases, the specimen was clearly not submitted for
the benefit of the suspect or employee who later brought the cause of action but was
intended to benefit the law enforcement agency, in obtaining a conviction, or the
employer, in ensuring a drug-free workforce. See, e.g., Can~ell, 506 Pa. at 40, 483 A.2d
at 1351; Ney, 723 A.2d at 722. Because the laboratories that received the samples were
acting for the benefit of the agency or employer, they owed no duty directly to the
suspect or employee. See, e.g., Cantwell, 506 Pa. at 40, 483 A.2d at 1351; Ney, 723 A.2d
at 722. In the present case, however, the specimens were submitted solely for the benefit
of the patient, Mr. Norton, and the doctors who requested the report had no personal
interest in the outcome of those reports. Because Defendant Cytometry knowingly
14
The imposition of a duty on Defendant Cytometry for the protection of patients is
also supported by public policy considerations. The assistance provided by reference
laboratories in detecting and diagnosing cancers is essential to public health,6~ and, as is
clear from the unfortunate circumstances underlying this case, the consequences of errors
in detection and reporting can be severe. Making laboratories that engage in analysis for
the purpose of furthering therapeutic treatment accountable to patients themselves fosters
accurate and expedient diagnosis of disease and facilitates early and effective treatment.
Further, establishing such a duty on laboratories such as Defendant Cytometry, which
performs analyses solely for the benefits of patients, permits patients who have been
harmed by incorrect treatment to recover directly from the entity ultimately responsible
for the misdiagnosis. Because Defendant Cytometry provided its services solely for the
benefit of patients and could foresee the risks to patients resulting from incorrect or
negligently performed analyses, and because policy considerations support the
received and analyzed these specimens for the benefit of patients, it is appropriate to
impose a duty on Defendant Cytometry for the protection of the patient.
In its brief, Defendant Cytometry places great emphasis on Caputo v. Compuchem
Laboratories, Inc., in which the United States District Court for the Eastern District of
Pennsylvania held that no cause of action arose from the allegedly negligent actions of a
laboratory in reporting, after analysis, that the plaintiff-employee's blood was "positive"
for morphine, a finding on which the plaintiff's employer relied in terminating the
plaintiff. See Caputo, 1994 WL 100084, at *2-4. Although this holding is consistent with
the analysis above, in that it involves the denial of a duty running from the laboratory to
the employee in circumstances in which the laboratory test was conducted for the benefit
of the employer, the language used by the court arguably suggests that a duty would not
be found in a case such as the one sub judice. See, e.g., id. at *4 ("Although we might
speculate that the recipient of the report could fail to appropriately review such test
results, there is no basis for imposing upon the laboratory a duty to assure competent
medical review of the results it obtains unless it has a contractual duty to do so.").
However, to the extent that Caputo stands for such a holding, the court is of the opinion
that it does not represent the prevailing view of the courts of this Commonwealth,
particularly because the district court could cite no Pennsylvania cases--nor, in fact, any
cases--in support of its interpretation.
61 See Act of Dec. 6, 1972, P.L. 1388, pmbl., 1972 Pa. Laws 297, 297 ("[T]he health and
lives of the citizens of this Commonwealth are endangered by incompetent supervision of
clinical laboratory tests .... ").
15
recognition of a duty to protect patients from misdiagnosis and treatment for cancer,
Defendant Cytometry may be liable for a breach of its duty owed to patients of
physicians who submit suspected cancer cells to Defendant Cytometry for analysis.
Although the finding of a duty provides a basis for recovery by the party to which
the duty is owed, liability will lie only if a violation of the standard of care imposed by
that duty is established. Generally, parties are held to the "reasonable person" standard,
under which a breach occurs when the party does that which a "reasonable person" in
similar circumstances would not do. E.g., Stewart v. Motts, 539 Pa. 596, 605-06, 654
A.2d 535, 539-40 (1995). However, in circumstances in which the defendant "had
received specialized training[] or was required to demonstrate a high standard of skill and
knowledge," it is appropriate to apply a "professional" standard of care, under which a
breach occurs when the party fails to exercise the degree of ability and intelligence that
characterizes the profession at the time. Fredericks' v. Castora, 241 Pa. Super. 211, 214,
360 A.2d 696, 697-98 (1976); see also Incollingo v. Ewing, 444 Pa. 263, 280-85, 282
A.2d 206, 216-18 (1971), cited with approval in Hahn v. Richter, 543 Pa. 558, 673 A.2d
888 (1996); Riffv. Morgan Pharmacy, 353 Pa. Super. 21, 28-29, 508 A.2d 1247, 1251
(1986). This standard, most commonly associated with medical doctors, is properly
imposed when professionals in the field are required to obtain a uniform and specialized
education and when the imposition of such a duty is supported by policy considerations,
often expressed though the promulgation of regulations governing the profession. See id
(finding that pharmacist should be held to a higher standard of care because pharmacists
are required to hold a university degree, because the work of pharmacists implicates
societal health concerns, and because "[t]he practice of pharmacology is a regulated
profession in Pennsylvania" with several requirements for obtaining a license).
In the present case, the nature of Defendant Cytometry's work and the regulatory
requirements imposed on similar entities supported the proposition that Defendant
Cytometry should be held to a professional standard of care. Like pharmacies, clinical
laboratories and their employees are regulated by the Commonwealth under the
Department of Health, and personnel, both supervisory and technical, of clinical
16
laboratories are required to hold post-secondary degrees.62 See Act of Sept. 26, 1951, P.L.
1539, as amended, 35 P.S. §9 2151-2161.1 (West 2002); 28 Pa. Code 99 5.1, 5.11, 5.24
(2002); c~. RifJ~ 353 Pa. Super. at 28, 508 A.2d at 1251 (holding that pharmacists should
be held to a professional standard of care based on the findings, inter alia, that "[t]he
practice of pharmacology is a regulated profession in Pennsylvania" and that pharmacists
are required to hold a degree in pharmacology). "The Clinical Laboratory Act was
enacted to protect the health of the citizens of the Commonwealth by ensuring that
laboratory tests are performed by competently supervised professionals." Masland v.
Bachman, 473 Pa. 280, 293, 374 A.2d 517, 524 (1977). To effect this objective, the
Department of Health is vested with the authority to issue permits for clinical
laboratories, to promulgate regulations regarding the personnel and operation of such
laboratories, and to investigate violations of statutory or regulatory requirements. See 35
P.S. 99 2154, 2161-2161.1; 28 Pa. Code 99 5.11, 5.24; see alsoMasland, 473 Pa. at 293,
374 A.2d at 524; c~. RifJ~ 353 Pa. Super. at 28-29, 508 A.2d at 1251 (holding that
pharmacists should be held to a professional standard of care based on the finding, inter
alia, that state vested agency with regulatory authority over industry).
The detailed regulatory mechanism established to oversee clinical laboratories63
shows both the vital importance of the work done by such laboratories to the people of
the Commonwealth and the professional nature of employment in the industry. Cd'. id
Thus, it is appropriate to hold such laboratories to a professional standard of care,
62 But see 28 Pa. Code 9 5.24(a)(2) (2002) ("An individual without the baccalaureate
degree may become qualified as a technologist according to the provisions of section 241
of Title XI of the Social Security Amendments of 1972 Public Law 92-603 (42 U.S.C.A.
9 1320a-2).").
63 It should be noted that this regulatory authority extends even to clinical laboratories
that are located outside of the Commonwealth but handle specimens that originate from
Pennsylvania residents. See 28 Pa. Code 9 5.83 ("A laboratory located outside the
Commonwealth may solicit and receive specimens originating within the Commonwealth
if it has a currently valid license issued under the provisions of section 353 of the Clinical
Laboratory Improvement Act of 1967 (42 U.S.C.A. 9 263), and applicable regulations
and, it complies with all regulations which exceed or differ from those of the Federal
statute.").
17
requiring that, in the performance of their professional duties, laboratories such as
Defendant Cytometry should meet the "standard of care, skill, [and] intelligence which
ordinarily characterizes the profession." Id. It should be noted that this standard "does not
demand extraordinary skill, but, rather, that degree which ordinarily characterizes the
profession," with "regard... to the advanced state of the profession at the time.''64 Id.
In establishing a professional standard of care, testimony by an expert in the same
or a similar professional field is generally required:
The determination of [professional] malpractice ... requires an evaluation
of professional skill and judgment, as well as a standard of care which is
related to common professional practice. The expert witness in professional
malpractice is necessary to establish the specific standard of care and to
assist the jury in its determination of defendant's conformity to the relevant
standard. These are matters which are typically beyond the scope of the
normal experience of laymen.
Lentino v. Fringe Employee Plans, Inc., 611 F.2d 474, 480-81 (3d Cir. 1979), cited with
approval in Rizzo v. Haines, 520 Pa. 484, 502, 555 A.2d 58, 66 (1989); accordPowell v.
Risser, 375 Pa. 60, 65, 99 A.2d 454, 456 (1953) ("It has been uniformly held that expert
testimony is necessary to establish negligent practice in any profession."), cited with
approval in Young v. Commonwealth Dep 't of Transp., 560 Pa. 373,377, 744 A.2d 1276,
1278 (2000). Because the function of the expert witness is to present a generally
applicable professional standard of care, the testimony offered by the witness, to be
relevant, must express the expert's views regarding the accepted practice in the
professional community, not merely the expert's personal opinion on the appropriate
response in a given situation. SeeMaurer v. Trs. of Univ. of Pa., 418 Pa. Super. 510, 517-
27, 614 A.2d 754, 758-63 (1992) (en banc). However, although testimony regarding the
expert's "own, personal standard of care" is insufficient to establish a professional
standard of care, testimony by a single expert witness as to a generally applicable
64 Defendant Cytometry does not appear to challenge the imposition of a professional
standard of care in this case, but argues that Plaintiff presented insufficient expert
testimony to establish such a standard. Br. of Def., Cytometry Associates, in Supp. of Its
Post-Trial Mots., dated Jan. 30, 2003, at 25-26.
18
standard in the professional community is normally sufficient, without more, to enable
the factfinder to determine the proper standard of care, even if conflicting testimony as to
the standard of care is offered by other experts.65 See, e.g., Brannan v. Lankenau Hosp.,
490 Pa. 588, 595-98, 417 A.2d 196, 199-201 (1980) (holding that testimony of one expert
witness was sufficient to establish standard of care and that "juries [are allowed] to
consider and resolve conflicts among expert witnesses"), cited ~vith approval in Gala v.
Hamilton, 552 Pa. 466, 470 n. 1, 715 A.2d 1108, 1110 n. 1 (1998); see also Fetherolfv.
Torosian, 759 A.2d 391, 393 (Pa. Super. Ct. 2000) (stating that, to establish professional
standard of care, plaintiffs "must offer an expert witness") (quoting Eaddy v. Hamaty,
694 A.2d 639, 642 (Pa. Super. Ct. 1997)), appeal denied, 568 Pa. 700, 796 A.2d 983
(2001); Maurer, 418 Pa. Super. at 526, 614 A.2d at 763 (suggesting that, had the
65 The contention that a particular witness's testimony is incompetent to establish a
professional standard of care is settled by the court's determination that the witness is
qualified as an expert, meaning that the witness's knowledge and expertise are such that,
as a matter of law, the factfinder could, in its power to judge the credibility of witnesses
and the weight of evidence, reasonably accept the witness's assertions as conclusive of
the generally accepted practice in a given profession. See, e.g., Brannan v. Lankenau
Hosp., 490 Pa. 588, 595-98, 417 A.2d 196, 199-201 (1980). In its brief, Defendant
Cytometry suggests that, to establish a "generally accepted" standard of care in the
professional community, a plaintiff must present several experts and reference authorities
that show, without material contradiction, that the standard of care asserted is accepted by
most, if not all, members of the profession. This argument conflates the substantive and
evidentiary standards with respect to a motion for judgment N.O.V. The requirement that
the standard of care be "generally accepted" is not an evidentiary standard, requiring the
plaintiff to present a certain number of experts in the profession to succeed in a
professional negligence action; rather, it is only a substantive standard, requiring the
plaintiff to establish a minimum level of skill to which all members of the profession
adhere. The applicable evidentiary standard in the context of a motion for judgment
N.O.V. is sufficiency of the evidence, meaning that the plaintiff must produce only
enough evidence to establish a prima facie case of negligence, and, to meet this minimal
burden it is sufficient to produce a single expert, who is qualified in the field and who
testifies with a reasonable degree of certainty as to the standard of care accepted by the
professional community. Birth Ctr., 567 Pa. at 397-98, 787 A.2d at 383; Brannan, 490
Pa. at 595-98, 417 A.2d at 199-201. Conflicting evidence as to the acceptance of the
standard among other experts in the field goes to the weight of the evidence, not its
sufficiency, and is generally not considered in the context of a motion for judgment
N.O.V. See id
19
plaintiff's single expert testified clearly as to generally applicable standard of care,
standard could have been established).
In the present case, the court is of the opinion that Plaintiff offered sufficient
evidence to support the jury's finding that the standard of care in 1995 required
Defendant Cytometry (1) to use a "panel" of antibodies that is capable of producing
results that definitively rule out either lymphoma or leukemia in a sample to be tested for
that purpose and (2) to report its findings and interpretations clearly and accurately to
physicians that request testing. Dr. James A. Strauchen, who was qualified as an expert
in, inter alia, flow cytometry, testified that, although no consensus existed in the
profession in 1995 for the complete panel of antibodies that should be used in all
situations, "there[ are] certain core antigens [that] everybody agree[s] should be present
in a given panel.''66 Other experts testified, consistently with Dr. Strauchen, that, at a
minimum, the panel used should contain a sufficient number of antibodies to distinguish
clearly between the presence of lymphoma or leukemia.67 Thus, Plaintiff presented
sufficient evidence to establish that the standard of care among cytometry laboratories in
1995 required Defendant Cytometry to use a panel of antibodies capable of ruling out
lymphoma or leukemia.
Further, Dr. Strauchen testified that "[no]body would dispute" that the "standard"
among physicians and labs is that "information sent to treating doctors be accurate and
clear.''68 Other experts substantially agreed that Defendant Cytometry had a duty to report
66 N.T. 41, 60-63.
67 See, e.g., N.T. 540-42.
68 N.T. 43. During cross-examination, counsel for Defendant Cytometry questioned Dr.
Strauchen primarily about the actions of Dr. Swamidoss and Dr. Patel with respect to the
treatment of Mr. Norton in an effort to show that the actions of Defendant Cytometry
were not the cause of Mr. Norton's death, and did not elicit any statements by Dr.
Strauchen that materially contradicted his earlier testimony regarding the professional
standard of care. See, e.g., N.T. 93-97, 105-07, 109-10, 112-13, 118-23. Although
Defendant Cytometry claims in its brief that "Dr. Strauchen's testimony that a standard of
care existed in 1995 for the reporting of flow cytometry test results was not only
unsupported in the field of cytometry,.., it was directly contradicted by the only
20
information "clearly and accurately" to physicians.69 Because Dr. Strauchen, qualified as
an expert witness, testified clearly as to the generally applicable standard of care in 1995,
the jury was permitted to credit his testimony, as opposed to any conflicting testimony
offered by experts for Defendant Cytometry, and to find that a standard of care did exist
in 1995 and that the actions by Defendant Cytometry constituted a breach of this
standard.7°
scientific literature on the subject," identified in the brief as % 1997 report entitled [sic],
'U.S.-Canadian Consensus Recommendations on the Immunophenotypic Analysis of
Hematologic Neoplasia by Flow Cytometry: Data Reporting,'" about which, according to
Defendant Cytometry, Dr. Strauchen was questioned. Br. of Def., Cytometry Associates,
in Supp. of Its Post-Trial Mots., dated Jan. 30, 2003, at 25-26. However, the court has
been unable to find, in the testimony of Dr. Strauchen, any reference to this article or any
suggestion that he approved of its conclusions, and it does not appear that Defendant
Cytometry entered the article into evidence. But see Mot. in Limine of Def., Cytometry
Associates, To Preclude Pl.'s Expert Test. or, in the Alternative, Mot. for a Frye Hr'g,
filed Oct. 30, 2002, Ex. F (copy of article). However, even if the article had been
admitted into the record, the court is of the opinion that Dr. Strauchen's testimony with
respect to the applicable professional standard of care was sufficiently clear so as to allow
the jury to find that a consensus existed in the professional community with respect to the
inclusion of certain antibodies in a panel for testing and the necessity of reporting clearly
and accurately the results of analyses.
69 N.T. 912, 998-1001, 1022-23, 1188.
70 In its motion for judgment N.O.V., Defendant Cytometry raised no challenge to the
jury's finding that it had breached the standard of care in this case. Mots. for Post-Trial
Relief by Def., Cytometry Associates, filed Nov. 25, 2002, paras. 1-19. But cJ. id. paras.
2-4, 15-17 (raising challenges to the sufficiency of the evidence with respect to the
elements of duty, standard of care, and causation). To the extent that the motion for
judgment N.O.V. can be interpreted as challenging the jury's finding that a breach had
been established, see id. para. 18 ("Plaintiffs have failed to present sufficient competent
evidence to make out a prima facie case of negligence on the part of [Defendant
Cytometry]."), the court is of the opinion that the jury's finding was supported by the
evidence in this case. In conjunction with its power to determine the appropriate standard
of care, the jury may rely on the testimony of a single expert to decide whether the
standard of care applicable in a case has been violated. Brannan, 490 Pa. at 595-98, 417
A.2d at 199-201. In this case, Dr. Strauchen testified that Defendant Cytometry violated
the applicable standard of care by using a deficient panel, in terms of the number of
antibodies included, and by providing inaccurate reports, the first of which suggested the
presence of lymphoma when the analyses conducted were "inconclusive" and the third of
21
The finding that the defendant breached a duty owed to the plaintiff can support
the imposition of liability only if causation exists between the breach and the harm.
Causation, as used in this sense, encompasses two distinct concepts: causation in fact and
proximate causation. "Cause in fact or 'but for' causation provides that if the harmful
result would not have come about but for the negligent conduct then there is a direct
causal connection between the negligence and the injury." First v. Zero Zero Temple, 454
Pa. Super. 548, 553 n.2, 686 A.2d 18, 21 n.2 (1996). Generally, whether causation in fact
has been established is an issue reserved for the jury. See id; Bell v. Irace, 422 Pa. Super.
298, 302, 619 A.2d 365, 367 (1993).
"Unlike causation in fact,.., proximate causation 'is primarily a problem of
law'... [and] depends 'essentially on whether the policy of the law will extend the
responsibility for the [negligent] conduct to the consequences which have in fact
occurred.'" Id (quoting W. Page Keeton et al., Prosser & Keeton on Torts 273 (5th ed.
1984)). Proximate causation is a necessarily elastic concept, and, accordingly,
Pennsylvania has adopted the balancing test set forth in the Restatement (Second) of Torts
to determine "whether the actor's conduct is a substantial factor in bringing harm to
another." Brown v. Phila. Coll. of Osteopathic Meal, 760 A.2d 863, 868-69 (Pa. Super.
Ct. 2000) (quoting Restatement (Second) of Torts § 433 (1965)), appeal denied, 566 Pa.
632, 781 A.2d 137 (2001); see also Vattimo v. Lower Bucks Hosp., Inc., 502 Pa. 241,
246-47, 465 A.2d 1231, 1233-34 (1983) (plurality opinion); Hohns v. Gain, 806 A.2d 16,
20 (Pa. Super. Ct. 2002). In this analysis, several factors should be considered:
which failed to correct this erroneous suggestion even though the lack of gene
rearrangement in the final analysis suggested the absence of lymphoma. See N.T. 41-43,
59-63; see also N.T. 63 ("[T]he manner in which [Defendant Cytometry] interpreted the
data and sent that information to Dr. Swamidoss ... violate[d the applicable standard of
care]."); N.T. 102-04 (stating that, although the report from Defendant Cytometry
indicated that gene rearrangement was not found, a fact that would suggest leukemia in
eighty-nine percent of cases, the report stressed that rearrangement does not establish that
lymphoma is not present). Thus, taking the evidence in the light most favorable to
Plaintiff, sufficient evidence existed to support the finding that Defendant Cytometry
breached the standard of care in this case.
22
(a) the number of other factors which contribute in producing the harm
and the extent of the effect which they have in producing it;
(b) whether the actor's conduct has created a force or series of forces
which are in continuous and active operation up to the time of the harm, or
has created a situation harmless unless acted upon by other forces for which
the actor is not responsible;
(c) lapse of time.
Brown, 760 A.2d at 869 (quoting Restatement (Second) of Torts § 433 (1965)).
Essentially, the issue of proximate causation tums on whether the actor could reasonably
foresee the harmful consequences of his or her actions. Mazzagatti v. Everingham ex tel.
Everingham, 512 Pa. 266, 278, 516 A.2d 672, 678 (1986); Bell, 422 Pa. Super. at 302,
619 A.2d at 367. See generally Palsgrafv. Longls/andR. R. Co., 248 N.Y. 339, 162 N.E.
99 (1928) (illustrating close connection between foreseeability aspects of the issues of
duty and proximate causation).
In the present case, the court is of the opinion that the results of Defendant
Cytometry's negligent conduct were sufficiently foreseeable so as to support the jury's
finding that Defendant Cytometry's actions were a substantial factor in producing the
harm to Mr. Norton.TM As discussed previously, Defendant Cytometry's business is
71 In its motion for judgment N.O.V., Defendant Cytometry raised no challenge to the
finding of causation in fact. Mots. for Post-Trial Relief by Def., Cytometry Associates,
filed Nov. 25, 2002, paras. 1-19. To the extent that the motion for judgment N.O.V. can
be interpreted as challenging the finding of causation in fact, see id para. 18 ("Plaintiffs
have failed to present sufficient competent evidence to make out a prima facie case of
negligence on the part of [Defendant Cytometry]."), the court is of the opinion that the
finding was clearly supported by the evidence relating to the reliance of Dr. Swamidoss
and Dr. Patel on the report of Defendant Cytometry. This evidence tended to show that
Dr. Patel would not have prescribed any course of treatment until Dr. Swamidoss made
his recommendation and that Dr. Swamidoss would not have made a recommendation
until receiving a report from Defendant Cytometry on the results of its analysis. See, e.g.,
N.T. 112 ("[T]he clinician based his treatment on the pathologist's diagnosis. The
pathologist based his diagnosis on the flow cytometry."); N.T. 338 (testimony of
Plaintiff's expert, Dr. Michael Auerbach) ("As a result[ of Defendant Cytometry's
report], Mr. Norton received the wrong therapy for a long period of time, markedly
impairing his ability to respond to the appropriate therapy when the diagnosis was
ultimately made."); N.T. 542. Further, both Dr. Swamidoss and Dr. Patel testified that
23
premised on analyzing and identifying suspected cancer cells submitted on behalf of
patients by their treating physicians, and the reports produced by Defendant Cytometry
are used by treating physicians to further the diagnosis and treatment of the patient.TM
Defendant Cytometry knew and could foresee that each analysis that it conducted was
intended for the benefit of a patient, meaning that its actions carried a "foreseeable [risk
of] harm to a foreseeable class" of patients. The evidence, considered in the light most
favorable to Plaintiff, established (1) that Defendant Cytometry had failed to use an
adequate panel of antibodies to determine whether the specimen submitted by Dr.
Swamidoss exhibited signs of leukemia or lymphoma,73 (2) that, although the results
from the tests were inconclusive, Defendant Cytometry reported to Dr. Swamidoss--and,
through him, to Dr. Patel--that Mr. Norton's specimen exhibited signs of lymphoma,TM
(3) that, upon conducting gene rearrangement that showed an eighty-nine percent
likelihood that lymphoma was not present, Defendant Cytometry produced a report that
continued to support a diagnosis of and treatment for lymphoma,?s and (4) that, with the
they relied on the report of Defendant Cytometry in reaching a diagnosis of lymphoma
and prescribing treatment, see N.T. 153, 652, and Dr. Michael Auerbach, an expert for
Plaintiff, agreed, with a reasonable degree of medical certainty, that "having the wrong
treatment initially increase[d] the risk that Mr. Norton would die or live a shorter life than
he otherwise would have." N.T. 338. Because Mr. Norton would not have received
improper treatment for lymphoma but for the report suggesting the presence of
lymphoma and because Mr. Norton could have received effective treatment for leukemia
but for the improper treatment for lymphoma, the finding that Defendant Cytometry's
negligence was the factual cause of the harm to Mr. Norton was supported by the
evidence in this case. See also N.T. 65, 542.
72 See, e.g., N.T. 1230 (testimony of Defendant Cytometry's expert, Keith Edward
Shults) ("All physicians rely on our interpretations. That is our job.").
73 See N.T. 41-43, 59-63.
74 N.T. 63 ("[T]he manner in which [Defendant Cytometry] interpreted the data and sent
that information to Dr. Swamidoss... violate[d the applicable standard of care].").
75 N.T. 102-04 (stating that, although report from Defendant Cytometry indicated that
gene rearrangement was not found, a fact that would suggest leukemia in eighty-nine
percent of cases, the report stressed that rearrangement does not establish that lymphoma
is not present).
24
knowledge of Defendant Cytometry, Dr. Swamidoss and Dr. Patel relied upon these
reports in recommending treatment for Mr. Norton.76 Because all reports produced by
Defendant Cytometry are for the sole benefit of patient diagnosis and treatment,
Defendant Cytometry could readily foresee that the use of inadequate antibody panels
and the production of inaccurate reports could result in improper patient treatment,77 a
conclusion that militated in favor of the finding of proximate causation.
Further, the factors listed in the Restatement (Second) of Torts', adopted by courts
in Pennsylvania, support the jury's finding that proximate causation existed in this case.
With respect to the "the number of other factors which contribute in producing the harm
and the extent of the effect which they have in producing it," a reasonable juror could
have concluded that one substantial factor that caused the harm in this case consisted of
the negligent actions of Defendant Cytometry. Dr. Patel testified that his treatment
decisions were based on the reports issued by Defendant Cytometry that identified
lymphoma as the disease most likely present in Mr. Norton's specimen, and Plaintiff's
expert, Dr. Michael Auerbach, agreed that Dr. Patel's decision to institute treatment for
lymphoma was a direct result of the report issued by Defendant Cytometry.78 The
immediate necessity of treatment required Dr. Patel to act on this report and to offer a
therapy that would later inhibit treatment for Mr. Norton's actual condition.79 Plaintiff
offered testimony that Defendant Cytometry's third report failed to correct the initial
76 See, e.g., N.T. 112 ("[T]he clinician based his treatment on the pathologist's diagnosis.
The pathologist based his diagnosis on the flow cytometry."); N.T. 338 (testimony of
Plaintiff's expert, Dr. Michael Auerbach) ("As a result[ of Defendant Cytometry's
report], Mr. Norton received the wrong therapy for a long period of time, markedly
impairing his ability to respond to the appropriate therapy when the diagnosis was
ultimately made."); N.T. 542.
77 S¢¢, e.g., N.T. 338 (testimony of Plaintiff's expert, Dr. Michael Auerbach) (testifying,
with a reasonable degree of medical certainty, that "having the wrong treatment initially
increase[d] the risk that Mr. Norton would die or live a shorter life than he otherwise
would have").
78 See N.T. 84-85, 376-78; see also N.T. 540-50, 790-92.
79 S¢¢, e.g., N.T. 84-85, 655-56.
25
erroneous report, and, in fact, fortified the first report's negligent conclusion that
lymphoma was present in the specimen.8° Although Dr. Patel made the ultimate decision
to treat Mr. Norton's condition as lymphoma,8~ this decision was based upon Defendant
Cytometry's report that Mr. Norton's lymph nodes exhibited that disease.82 As Dr.
Strauchen testified, neither Dr. Patel nor Dr. Swamidoss had the ability to determine
whether the specimen showed signs of leukemia or lymphoma, and both relied
conclusively on the report issued by Defendant Cytometry.83 Unlike cases in which the
negligent actions of the actor were causally severed from the harm by the independent
actions of another professional, in this case the inaccurate reports suggesting the presence
of lymphoma could reasonably have been found to be a substantial factor in the erroneous
treatment, which "increase[d] the risk of [Mr. Norton] dying of acute leukemia.''84
With respect to "whether the actor's conduct has created a force or series of forces
which are in continuous and active operation up to the time of the harm, or has created a
situation harmless unless acted upon by other forces for which the actor is not
responsible," it appears that, in this case, a reasonable juror could have found that
Defendant Cytometry's actions were one of forces that caused the harm suffered by Mr.
Norton. As discussed previously, Defendant Cytometry produced the reports sub judice
for the sole benefit of Mr. Norton, and with the knowledge that those reports would be
acted upon by his treating physician, Dr. Patel.85 Thus, the jury could have reasonably
80 See N.T. 67, 384-85, 403-04, 407-08, 543-48.
al E.g., N.T. 1100.
82 See, e.g., N.T. 112 ("[T]he clinician based his treatment on the pathologist's diagnosis.
The pathologist based his diagnosis on the flow cytometry."); see also N.T. 407-08.
83 N.T. 153,652; see also N.T. 540-50.
84 N.T. 65.
85 See, e.g., N.T. 911-12. Defendant Cytometry's expert, Dr. Dennis B. Cornfield, agreed
that "cytometry labs, when they get requests for [specimen analyses], know.., that the
physicians to whom they return the information will rely upon it." N.T. 912. Dr.
Cornfield also testified that, because doctors such as Dr. Swamidoss and Dr. Patel are
"not experts on analyzing the data" reported from a cytometry lab, they must "rely upon
the interpretation" provided by the cytometry lab. N.T. 921.
26
found that these reports, used to direct the course of Mr. Norton's treatment, prohibited
Mr. Norton from receiving the proper treatment for leukemia, creating a "force... in
continuous and active operation" until Mr. Norton's death. Further, because of the
necessary reliance on these reports by Dr. Patel,86 it cannot be said that the mere issuance
of the reports created a situation that was harmless. Rather, the jury was entitled to
conclude that the production of these reports led directly to the decision to treat Mr.
Norton for lymphoma and, thus, to the resulting inability of Mr. Norton to respond to
treatment for leukemia, the disease that ultimately caused his death.
Finally, with respect to the "lapse of time" involved, the court is of the opinion
that the two-year period between the issuance of Defendant Cytometry's reports and Mr.
Norton's death does not militate against the jury's finding that proximate causation had
been established. As discussed previously, the analysis of this factor should not be
confined strictly to the period between the last action by the defendant and the harm
suffered. Rather, the primary consideration should be whether the "force" created by the
defendant's conduct has so dissipated as to suggest that, in the lapse of time since the
dissipation occurred, other factors have likely intruded in the causation stream. See
Restatement (Second) of Torts § 433 cmt. f (1965) ("[W]here it is evident that the
influence of the actor's negligence is still a substantial factor, mere lapse of time, no
matter how long, is not sufficient to prevent it from being the legal cause of the other's
harm."). Here, as discussed previously, the jury was entitled to conclude that Defendant
Cytometry's reports necessarily led to the decision to treat Mr. Norton for lymphoma and
that this decision, in turn, resulted in Mr. Norton's inability to respond to the proper
treatment for leukemia. Thus, the jury could reasonably find that the "influence" created
by Defendant Cytometry's action, properly characterized as Mr. Norton's inability to
respond to treatment for leukemia, was effective until the time of his death and that no
discemable "lapse of time" occurred.
86 See, e.g., N.T. 1230 (testimony of Defendant Cytometry's expert, Keith Edward
Shults) ("All physicians rely on our interpretations. That is our job.").
27
In the present case, a reasonable juror could conclude that the harm that resulted
from Defendant Cytometry's conduct was foreseeable to Defendant Cytometry,
Defendant Cytometry's conduct was a substantial factor in causing the harm, the effects
of the conduct were "in continuous and active operation up to the time of the harm," and
these effects resulted before the influence of Defendant Cytometry's conduct had
dissipated. Accordingly, the court is of the opinion that sufficient evidence existed to
support the finding of proximate causation. Because sufficient evidence also supported
the jury's findings with respect to each of the elements of professional negligence, the
motion for judgment N.O.V. must be denied.
Motion for a New Trial. In its motion for a new trial, Defendant Cytometry
presents the following assignments of error: (1) the jury's findings with respect to the
elements of professional negligence were against the clear weight of the evidence; (2) the
court's charge to the jury regarding damages was in error to the extent that it did not
instruct the jury to consider Mr. Norton's prior state of health; (3) the jury was permitted
to consider damages suffered throughout Mr. Norton's expected working life span when
Plaintiff claimed damages only for the time during which Mr. Norton underwent CHOP
chemotherapy; (4) the court allowed Plaintiff' s witnesses to testify as experts when they
were not qualified in their particular fields; (5) the court granted a directed verdict for Dr.
Swamidoss when evidence of Dr. Swamidoss's failure to communicate with Defendant
Cytometry and Dr. Patel was sufficient to support a finding of negligence; (6) the court
erred in allowing Plaintiff's expert Dr. Auerbach to testify as to the impact of Defendant
Cytometry's reports on Dr. Patel's treatment decisions; (7) the court refused to allow
Defendant Cytometry's expert Dr. Kenneth M. Algazy to testify as to the standard of care
applicable to Dr. Swamidoss and Defendant Cytometry's expert Dr. Ronald C.
McGlennen to testify as to the standard of care applicable to Dr. Patel; (8) the court
precluded evidence that Defendant Cytometry's bills were paid by insurance; (9) the
court failed to give a missing witness jury instruction with respect to Mr. Norton's
treating physician, Dr. Stephen Gore, who prepared an expert report critical of Defendant
Cytometry but did not testify during trial; (10) the court, prior to trial, refused to allow
28
Defendant Cytometry to supplement its expert reports after the receipt of additional
reports from Dr. Swamidoss and Dr. Patel; (11) the court, prior to trial, refused to allow
Defendant Cytometry to obtain cytogenetics material from the Kennedy Kreiger Institute;
(12) the court, prior to trial, denied Defendant Cytometry's summary judgment motion
without providing an opinion in support of its order; (13) the court, prior to trial, denied
Defendant Cytometry's motion in limine to preclude the testimony of Dr. Strauchen, Dr.
Auerbach, and Dr. Gore as to the standard of care applicable to Defendant Cytometry in
1995; and (14) the court, prior to trial, denied Defendant Cytometry's motion for a Frye
hearing with respect to the testimony of Dr. Strauchen.s7
With respect to Defendant Cytometry's first assignment of error, that the jury's
findings with respect to the elements of professional negligence were against the clear
weight of the evidence, the court is of the opinion that the evidence presented at trial
supported the jury's finding that the elements of professional negligence had been met. A
motion for a new trial based on the ground that the jury's verdict was contrary to the
weight of the evidence should be granted only when the verdict "shocks one's sense of
justice." Nelson v. Hines, 539 Pa. 516, 520, 653 A.2d 634, 636 (1995) (quoting Burrell v.
Phila. Elec. Co., 438 Pa. 286, 289, 265 A.2d 516, 518 (1970)). In ruling on a motion for a
new trial, the court should remain cognizant that it is the role of the jury to decide issues
of credibility of both lay and expert witnesses, and the jury may "believe all, some, or
none of the testimony presented by a witness." Id at 520, 653 A.2d at 637; see
Armbruster v. Horowitz, 813 A.2d 698, 706 (Pa. 2002). "Even if the testimony is
uncontradicted, the jury is not required to accept everything or anything a party presents."
Bezerra v. Nat'l R.R. Passenger Corp., 760 A.2d 56, 63 (Pa. Super. Ct. 2000) (quoting
Dawson v. Fowler, 384 Pa. Super. 329, 333, 558 A.2d 565, 567 (1989)), appeal denied,
567 Pa. 708, 785 A.2d 86 (2001); see Armbruster, 813 A.2d at 706. In deciding issues of
credibility, the jury may consider whether the witness has an interest in the outcome of
the case. Williams v. McClain, 513 Pa. 300, 309, 520 A.2d 1374, 1378 (1987).
87 Mots. for Post-Trial Relief by Def., Cytometry Associates, filed Nov. 25, 2002.
29
In its motion for a new trial, Defendant Cytometry claims that the evidence
presented at trial did not support the jury's findings with respect to duty, standard of care,
breach, proximate causation, and damages. With respect to the issue of duty, the court is
of the view that the imposition of a duty on Defendant Cytometry was supported by the
evidence in this case. As discussed previously, Plaintiff presented substantial evidence,
primarily in the form of expert testimony, suggesting that Defendant Cytometry's
business is premised on analyzing suspected cancer cells for the benefit of patient
treatment and that Defendant Cytometry could thus foresee the risk to those patients from
errors in its analysis, interpretation, and reporting, a conclusion with which Defendant
Cytometry's experts substantially agreed.88 Accordingly, the weight of the evidence
supported the imposition of a duty on Defendant Cytometry for the protection of Mr.
Norton.
With respect to the factual issue of the proper standard of care, the court is of the
opinion that the jury's finding that a standard of care existed in 1995 was not against the
"overwhelming weight of the evidence" presented at trial. On the question of whether a
standard existed as to the number of antibodies that should be included in a panel for
analysis purposes, Dr. Dennis B. Cornfield, an expert presented by Defendant Cytometry,
testified that the appropriate panel of antibodies to be used in a given circumstance is
"constantly evolving,''89 a statement that is not inconsistent with the testimony by Dr.
Strauchen that the standard among labs at the time was that "certain core antigens"
should be present in "a[ny] given panel.''9° Defendant Cytometry's expert Keith Edward
88 See, e.g., N.T. 112 ("[T]he clinician based his treatment on the pathologist's diagnosis.
The pathologist based his diagnosis on the flow cytometry."); N.T. 407-08, 1230; see
als'o Br. of Def., Cytometry Associates, in Supp. of Its Post-Trial Mots., dated Jan. 30,
2003, at 2 ("Cytometry Associates is a biotechnical laboratory.., that employs
scientists.., to analyze, identify and classify suspected cancer cells.., as an adjunct to
the practice of medicine, and the only clients of Cytometry Associates are medical
professionals who specialize in the diagnosis of cancers.").
89 E.g., N.T. 967.
9o N.T. 41, 60-63.
30
Shults testified clearly that no standard regarding the proper antibodies to include in the
panel existed in 1995, but he also testified that panels could be assembled that would
conclusively detect the presence, or lack, of leukemia or lymphoma, suggesting that a
standard of care could be identified in 1995.91
On the question of whether a standard existed as to the reporting of analysis
results, Plaintiff's expert, Dr. Strauchen, testified clearly that the "standard" among
physicians and labs was that "information sent to treating doctors be accurate and clear,"
and Defendant Cytometry elicited no testimony on cross-examination that conflicted with
this assertion.92 In fact, Defendant Cytometry's experts agreed generally with Dr.
Strauchen's statement that Defendant Cytometry had a duty to report information "clearly
and accurately" to physicians.93 Defendant Cytometry's experts, while testifying that
Defendant Cytometry had not violated its duty in this case,94 did not state that a standard
of care applicable to entities such as Defendant Cytometry did not exist in 1995. Based
on the lack of any material conflict between the testimony of Plaintiff's and Defendant
Cytometry's experts, and on the respect traditionally accorded to the findings of the jury
regarding credibility of witnesses, the court cannot say that the jury's finding that a
standard of care applicable to Defendant Cytometry existed in 1995 "shocked the
conscience of the court" so as to warrant a new trial. See Neison, 539 Pa. at 520, 653
A.2d at 636.
With respect to the factual issue of breach of the standard of care, the court is of
the opinion that the evidence presented at trial amply supported the jury's finding of a
breach of Defendant Cytometry's duty to utilize an antibody panel capable of providing
91 N.T. 1200-02, 1208-09.
92 N.T. 43.
93 N.T. 912, 998-1001, 1022-23, 1188.
94 N.T. 933. However, Dr. Cornfield also testified that cytometry labs "know that they
have to be careful in clearly and accurately expressing to the physician what the
information [in the report] means" and that the report issued by Defendant Cytometry did
not "conform to what the data [produced by Defendant Cytometry's analysis] actually
showed." N.T. 912, 919.
31
results that distinguish between the presence of leukemia and lymphoma and to report
information clearly and accurately to physicians. With respect to the duty to use a
sufficient panel of antibodies, Dr. Strauchen testified that Defendant Cytometry acted
below the professional standard of care in using an antibody panel that could not
distinguish between leukemia and lymphoma,95 and Defendant Cytometry's experts
agreed that the panel used was incapable of producing a conclusive answer to whether
lymphoma or leukemia was present.96 Based on the finding that a standard of care existed
that required the use of a sufficient panel to distinguish between lymphoma and leukemia,
it appears clear that the evidence supported the jury's verdict that Defendant Cytometry
had violated that standard.
With respect to the duty to report information accurately to physicians, Dr.
Strauchen testified that Defendant Cytometry's report inaccurately suggested that the
results had positively identified the specimen as exhibiting lymphoma, even though the
antibody panel was inadequate to produce such a clear answer.97 Another of Plaintiff's
experts, Dr. Auerbach, testified that the report was "unequivocal" in indicating the
presence of lymphoma.98 Defendant Cytometry's expert, Dr. Cornfield, testified that the
analyses conducted by Defendant Cytometry could not support the positive identification
of lymphoma provided in Defendant Cytometry's report and that the reports issued by
Defendant Cytometry did not provide an accurate interpretation of the results obtained.99
Another of Defendant Cytometry's experts, Dr. Gregory Thomas Stelzer, testified that the
95 See N.T. 41-43, 59-63; see a/so N.T. 102-04 (stating that, although report from
Defendant Cytometry indicated that gene rearrangement was not found, a fact that would
suggest leukemia in eighty-nine percent of cases, the report stressed that rearrangement
does not establish that lymphoma is not present).
96 E.g., N.T. 1200-02, 1208-09; see a/so N.T. 1170-71, 1182, 1187, 1189.
97 N.T. 62-63.
98 N.T. 338; see a/so N.T. 804.
99 N.T. 919-24, 1018-21. The testimony of Dr. Gregory Thomas Stelzer, another of
Defendant Cytometry's experts, conflicted with the testimony of Dr. Cornfield as to the
meaning of the report. N.T. 1018-21.
32
report was accurate,~°° but, on cross-examination, suggested that Defendant Cytometry's
report identified lymphoma and ruled out leukemia. ~0~ Further, Mr. Shults, the employee
of Defendant Cytometry who authored the first report sent to Dr. Swamidoss and Dr.
Patel as well as an expert witness on Defendant Cytometry's behalf, testified that the
report referred to the specimen as identifying lymphoma present in the specimen,
inferentially ruling out leukemia.~°2 Based on this evidence, it cannot be said that the
jury's verdict "shocked the conscience of the court" so as to justify the granting of a
motion for a new trial. Nelson, 539 Pa. at 520, 653 A.2d at 636.
With respect to the issue of proximate causation, the court is of the view that the
finding of proximate causation was supported by the evidence in this case. As discussed
previously, Plaintiff presented ample evidence that Defendant Cytometry's actions were a
substantial factor in causing the harm to Mr. Norton.~°3 Although Defendant Cytometry
presented expert testimony suggesting that Mr. Norton would not have survived his other
medical conditions even if he had been treated properly for leukemia in the first instance,
this evidence primarily addressed the availability of damages for loss of future earnings,
and the evidence substantially supported the conclusion that the incorrect treatment for
lymphoma, which hampered subsequent treatment for leukemia, was a substantial factor
~00 N.T. 1018-21. Dr. Algazy testified that identification of the specimen as exhibiting "T-
cell lymphoid lineage" did not "mean" lymphoma; however, he also testified that the
report contained statements saying that the identification was "consistent with"
lymphoma. N.T. 1118.
~0~ N.T. 1033-34.
~02 N.T. 1249.
~03 See supra notes 71-86 (discussing, in context of proximate causation, testimony that
Dr. Patel relied directly on the interpretation provided by Defendant Cytometry in
prescribing treatment); see a/so N.T. 338 (testimony of Plaintiff's expert, Dr. Michael
Auerbach) ("As a result[ of Defendant Cytometry's report], Mr. Norton received the
wrong therapy for a long period of time, markedly impairing his ability to respond to the
appropriate therapy when the diagnosis was ultimately made.").
33
in Mr. Norton's death.~°4 Accordingly, the weight of the evidence supported the finding
of proximate causation in this case.
With respect to the issue of damages, "it is fundamental that a plaintiff is to be
compensated fully for all loss sustained as a result of the tortfeasor's negligence."
Wagner ex rel. Wagner v. YorkHosp., 415 Pa. Super. 1, 12, 608 A.2d 496, 501 (1992). In
circumstances in which a negligent act caused the death of another person, this
compensation includes, as part of an action for wrongful death, the present value of
services that the decedent would have rendered for his family, funeral and medical
expenses, and the decedent's earning potential less personal maintenance expenses until
the end of the decedent's estimated working life-span, and, as part of a survival action,
the decedent's expected earnings from the date of injury until death, the decedent's pain
and suffering after the injury and prior to death, and the decedent's working lifetime
earnings potential less personal maintenance expenses and any amount previously
awarded for future earnings as part of a concurrent wrongful death action.~°6 Kiser v.
~04 N.T. 338-39, 435-37, 1230.
~05 To the extent that the post-trial motion may be interpreted as raising a challenge to the
jury's finding of causation in fact, the court has previously discussed the evidence
supporting the verdict in the context of the motion for judgment N.O.V. See supra note
71. In the view of the court, this evidence also shows that the finding of causation was
not so contrary to the weight of the evidence as to "shock[] the conscience of the court."
Nelson, 539 Pa. at 520, 653 A.2d at 636.
~06 An action for wrongful death is brought for the benefit of the "spouse, children, or
parents of a deceased" and, in accordance with this purpose, permits recovery of the
present value of the services that the decedent would have provided for the family,
funeral and medical expenses incurred by the family on behalf of the decedent, and the
decedent's loss of earning power less personal maintenance expenses until the end of the
decedent's estimated working life-span. Kiser v. Schulte, 538 Pa. 219, 226, 648 A.2d 1, 4
(1994); see also Act of July 9, 1976, P.L. 586, as amended, 42 Pa. C.S. § 8301(a), (b)
(2002). In contrast, a survival action is brought for the benefit of the decedent's estate
and, in accordance with this purpose, permits recovery of loss of the decedent's earnings
income from the time of injury until death, the decedent's pain and suffering after the
injury and prior to death, and the decedent's loss of earning power, less personal
maintenance expenses, until the end of the decedent's estimated working life-span. Kiser,
538 Pa. at 226, 648 A.2d at 4; see also Act of July 9, 1976, P.L. 586, 42 Pa. C.S. § 8302
34
Schulte, 538 Pa. 219, 226, 648 A.2d 1, 4 (1994); see also Kaczkowski v. Bolubasz, 491
Pa. 561, 566 & n.7, 421 A.2d 1027, 1030 & n.7 (1980); Incollingo, 444 Pa. at 294-95,
282 A.2d at 223-24; Wagner, 415 Pa. Super. at 12-14, 608 A.2d at 501-02. To justify the
granting of a new trial, the jury's verdict on the issue of damages "must be clearly and
immoderately excessive[;]... It]he amount must not only be greater than that which the
court would have awarded, but so excessive as to offend the conscience and judgment of
the [c]ourt." Goldberg ex tel. Goldberg v. Isdaner, 780 A.2d 654, 662 (Pa. Super. Ct.
2001).
In the opinion of the court, the figures supplied by Plaintiff's expert on the subject
were substantially supported by other evidence in this case and, as such, the jury was
entitled to rely on those figures in awarding $1.45 million with respect to Plaintiff's
wrongful death action~°7 and $1.5 million with respect to Plaintiff's survival action.~°a
With respect to those damages available as part of the wrongful death claim, Plaintiff,
through the testimony of David L. Hopkins, an expert in actuarial and economic
measures, offered uncontradicted evidence that the present value of the services that Mr.
Norton would have provided for his family was $358,540 and that, based on an estimated
working lifespan until age sixty,~°9 his expected future earnings capacity, less personal
(2002). A survival action may be maintained consistently with an action for wrongful
death; however, "the actions for damages are cumulative and are not to overlap or result
in duplication of damages." Kiser, 538 Pa. at 226, 648 A.2d at 4. "Wrongful death and
survival actions most often overlap when lost earnings and earning power are involved."
2 Summ. Pa. Jur. 2d Torts § 25.8 (2000). In the present case, the jury was instructed that
it should deduct the amount awarded for lost future earnings capacity with respect to the
wrongful death action from the award for lost future earnings with respect to the survival
action. See N.T. 1355.
~07 See Verdict, filed Nov. 14, 2002 (awarding $1.45 million with respect to Plaintiff's
wrongful death action).
~08 See id (awarding $1.5 million with respect to Plaintiff's survival action).
~09 Mr. Hopkins testified that the normal retirement age was "somewhere between age 60
and 65," and, of course, the jury was able to determine, in the role as factfinder, that an
expected retirement age of 60 was appropriate to ascribe to Mr. Norton.
35
maintenance expenses, was $1,092,317.~° According to testimony by Plaintiff and
stipulation by the parties, the funeral and medical expenses incurred on behalf of Mr.
Norton totaled $42,010.TM Thus, the jury's verdict of $1.45 million under the Wrongful
Death Act represented the sum of the damages properly included in a wrongful death
action: loss of future services, loss of future income contributions, and funeral and
medical expenses.
With respect to those damages available as part of the survival action, Mr.
Hopkins offered uncontradicted testimony that Mr. Norton's lost earning capacity
throughout the period of illness until his death was $151,451,~3 and that Mr. Norton
would have received $307,695 in future fringe benefits from his employment. ~4 Because
Defendant Cytometry offered no evidence to contradict this testimony, the jury's verdict
for Plaintiff's survival action, to the extent the verdict was based on the testimony of Mr.
~0 N.T. 281,288, 291.
~ N.T. 445-46, 1364-64.
~2 $358,540 (future lost household services) + $1,092,317 (future net lost earning
capacity) + $42,010 (medical and funeral expenses) = $1,492,867. Cf. Verdict, filed Nov.
14, 2002 (awarding $1.45 million with respect to Plaintiff's wrongful death action).
Although this sum does not include the value of lost future fringe benefits, which Mr.
Hopkins identified as totaling $307,695, the court is of the view that the jury could
reasonably determine that the value of these benefits would not be directly contributed to
Mr. Norton's family and, as such, should not be included as part of the award for a
wrongful death action but as part of the award for the survival action. Cf. Slaseman v.
Myers, 309 Pa. Super. 537, 549-50, 455 A.2d 1213, 1220 (1983) (suggesting that, when
wrongful death and survival actions are brought in one case, jury may award fringe
benefits as part of either action, so long as damages are not duplicative). Further, to the
extent that any additional portion of Mr. Norton's future earning capacity was included in
the award as part of the survival action, rather than part of the wrongful death action, the
court is of the opinion that the jury's verdict could still be upheld as including damages
based on the loss to Mr. Norton's children of Mr. Norton's "tutelage and general
upbringing." See Tule~vicz v. Southeastern Pa. Transp. Auth., 529 Pa. 584, 587, 606 A.2d
425, 426 (1991); see also N.T. 436-45 (discussing effect of loss of Mr. Norton on his
children).
~3 N.T. 281 (stating that value of past lost earning capacity was $126,209); Pl.'s Ex. 47
(providing that value of past lost fringe benefits was $25,242).
36
Hopkins, could not be considered to "shock[] the conscience of the court." Nelson, 539
Pa. at 520, 653 A.2d at 636.
Defendant Cytometry does not appear to challenge the accuracy of the figures
provided by Mr. Hopkins, but argues that the premises underlying Mr. Hopkins's
computations were invalid and that the jury's verdict based on these computations was,
thus, improper. Specifically, Defendant Cytometry argues that the evidence showed that
Mr. Norton would have died as a result of % deadly cancer and a fatal chromosomal
condition known as a t(3;3) defect," which, in conjunction with Mr. Norton's inability to
locate a matching donor for a bone marrow transplant, "prevented any chance that he
would recover from cancer." Thus, according to Defendant Cytometry, Mr. Hopkins's
conclusions, based on estimates that Mr. Norton could work until age sixty,~5 were
unsupported by the evidence.~6 However, upon a closer review of the expert testimony
offered by both Plaintiff and Defendant Cytometry, it appears clear that the evidence
supported the jury's award of damages based on an estimated working life span for Mr.
Norton until approximately age sixty. Plaintiff's experts Dr. Auerbach and Dr. Strauchen
testified that Mr. Norton, in addition to cancer, suffered from a chromosomal defect and
that this defect decreased Mr. Norton's chances for successful recovery.~7 However,
neither expert testified that the defect absolutely precluded Mr. Norton's chance of
recovery, and both stated that recovery was possible either through conventional
chemotherapy or through bone marrow transplantation. ~8 Although a bone marrow donor
~4 Pl.'s Ex. 47.
~5 N.T. 281-91,306.
116 Br. of Def., Cytometry Associates, in Supp. of Its Post-Trial Mots., dated Jan. 30,
2003, at 43.
~7 N.T. 123-28, 397-99. Interestingly, Dr. Auerbach testified that it was unclear whether
Mr. Norton's chromosomal defect arose before the application of CHOP chemotherapy or
as a result of it. N.T. 403.
~a N.T. 123-28, 397-99; see a/so N.T. 339 (testimony of Plaintiff's expert, Dr. Michael
Auerbach) ("[If Mr. Norton had] achieved a complete remission with the initial therapy,
he would have had a very reasonable chance for cure with either standard consolidation
37
with matching characteristics necessary to support transplantation was not found during
Mr. Norton's life, Dr. Auerbach suggested that this initial failure to locate a donor did not
foreclose the possibility of treatment because a more extensive search, which was not
conducted because Mr. Norton had not achieved a remission necessary to support
transplantation,~9 could have produced a donor, and because, even if a donor had not
been located, doctors could have potentially used bone marrow tissue from other parts of
Mr. Norton's body to complete the transplant.~2°
To summarize, the expert testimony presented at trial tended to suggest (1) that
Mr. Norton suffered from a chromosomal defect that decreased but did not eliminate his
chance of survival under conventional chemotherapy treatment, (2) that, even if
conventional chemotherapy treatments would be ineffective, Mr. Norton could still be
treated by bone marrow transplantation, (3) that, although a matching bone marrow donor
was not found during Mr. Norton's lifetime, this was not dispositive of a lack of potential
matching donors, and (4) that, even if no donor could be found, other potentially
successful treatment options were available to Mr. Norton if he had achieved a remission,
which was hampered by the institution of the CHOP chemotherapy. Thus stated, the
evidence supported the finding that, if Defendant Cytometry had not acted negligently in
issuing its report--an action that led to the institution of CHOP chemotherapy--Mr.
which is post-remission chemotherapy or bone marrow transplant. And when I say, cure,
I mean, no more treatment, no disease."). Clearly, since two potentially successful
treatment options were available, Mr. Norton's condition cannot be described as "fatal
and incurable." Mots. for Post-Trial Relief by Def., Cytometry Associates, filed Nov. 25,
2002, para. 27.
119 N.T. 123-28, 339, 397-99.
~20 N.T. 399-400. Dr. Auerbach explained this procedure as follows:
It's autologous. It means, a transplant from yourself. They actually harvest
your remission bone marrow and treat the bone marrow. The term we use is
ex vivo which means, living tissue, but it's treated in a suspension to try to
eliminate leukemic cells in your own bone marrow, so that when it's given
back, it won't regrow the bad disease. So [Mr. Norton] would have had that
option.
38
Norton could have achieved complete remission and would likely have been cured of his
condition.TM Accordingly, because Mr. Hopkins's testimony was based on supported
factual premises, the jury's award of damages, to the extent based on his computations,
was supported by the evidence.
Although the portion of the verdict based on Mr. Hopkins's conclusions was not
so clearly erroneous as to warrant a new trial, the court is of the opinion that, based on the
limited evidence presented by Plaintiff as to Mr. Norton's personal pain and suffering, a
remittitur should be granted with respect to the $1 million awarded as compensation for
Mr. Norton's pain and suffering.~22 While the jury "is given wide latitude in fashioning
its" award for damages for pain and suffering, the court should grant a remittitur,
"fix[ing] the highest amount a jury could properly award," if, after its review of "all the
evidence offered," the court is constrained to conclude that the damage award was
"arbitrary, speculative, or punitive" or "guided by partiality, prejudice, mistake or
corruption." Haines v. Raven Arms, 536 Pa. 452, 458, 640 A.2d 367, 370 (1994);
Teamann v. Zafris, 811 A.2d 52, 65 (Pa. Commw. Ct. 2002) (quoting Cashdollar v.
Mercy Hosp. of Pittsburgh, 406 Pa. Super. 606, 618, 595 A.2d 70, 76 (1991)). In the
present case, the only evidence offered as to Mr. Norton's pain and suffering consisted of
123
pictures of Mr. Norton prior to his death, showing his weakened and debilitated state,
and the testimony of Plaintiff, Mr. Norton's widow, who testified that the CHOP
chemotherapy was "very hard" on Mr. Norton and that, after the therapy was completed,
N.T. 400.
~ See also N.T. 339 (testimony of Plaintiff's expert, Dr. Michael Auerbach) ("[If Mr.
Norton had] achieved a complete remission with the initial therapy, he would have had a
very reasonable chance for cure with either standard consolidation which is post-
remission chemotherapy or bone marrow transplant. And when I say, cure, I mean, no
more treatment, no disease.").
~22 $151,451 (past lost earning capacity) + $307,695 (future lost fringe benefits) +
$1,040,854 (pain and suffering) = $1,500,000. Cf. Verdict, filed Nov. 14, 2002 (awarding
$1.5 million with respect to Plaintiff's survival action); supra note 112 (discussing
inclusion of loss of future fringe benefits).
123 P1.'s Ex. 38.
39
he was unable to participate, to the extent he had done so previously, in his children's
lives or to enjoy their company. ~24 Plaintiff also testified that, for the last year of his life,
Mr. Norton was "mostly bed-ridden," was "visibly weak," experienced difficulty in
talking and sleeping, was required to take up to thirty-two pills each day,~25 needed
assistance to perform daily maintenance tasks, including feeding himself, and required
intravenous medication.~6 However, Plaintiff also testified that Mr. Norton was able,
with the use of a facial covering to prevent the inhalation of infectious materials, to watch
his children participate in sporting events and was able to visit regularly with his
family.~7 In the view of the court, this testimony could not, without more, support a
finding that Mr. Norton's pain and suffering equaled $1 million. On the basis of the
evidence offered, and recognizing the inherent difficulty in attaching a objective figure to
a subjective characteristic, the court is of the view that the highest amount that can be
awarded for Mr. Norton's personal pain and suffering, experienced from the time of the
improper treatment until his death, is $500,000.~8 Cf. Scaife Co. v. Rockwell-Standard
Corp., 446 Pa. 280, 291, 285 A.2d 451, 457 (1971) (finding that trial court erred in
failing to grant remittitur when evidence did not support verdict); Teamann, 811 A.2d at
~24 N.T. 436-42.
125 Jcl.
126 Jcl.
127 Jcl.
~28 As discussed previously, the jury's verdict may also be interpreted as having split
future earnings capacity between the wrongful death and survival actions, meaning that
the $1 million award, identified here as the award for pain and suffering, would actually
be split between the award for pain and suffering under the survival action and the award
for the loss to Mr. Norton's children under the wrongful death action. See supra note 112
(discussing future earnings capacity award and damages available in survival action
based on the loss to Mr. Norton's children of Mr. Norton's "tutelage and general
upbringing"). To the extent that the jury' s verdict can be so interpreted, the court is of the
opinion that the testimony offered by Plaintiff as to the effects on Mr. Norton's children
of his unfortunate death, when considered with the testimony as to Mr. Norton's pain and
suffering, still could not support an aggregate award of $1 million, and that, accordingly,
a remittitur of $500,000 would still be appropriate.
40
65 (granting remittitur reducing pain and suffering award of $900,000 by $700,0000 in
circumstances in which the plaintiff died from injuries and jury may have awarded
damages for times during which the plaintiff was not alive or conscious); Novak v.
Supermarkets Gen. Corp., 28 Phila. Co. Rptr. 343, 345-51 (1994) (noting difficulty of
fixing maximum award for purposes or remittitur, and of fixing award generally, and
stating that, "[w]hile the jury verdict [of $800,000] is excessive, a large verdict [of
$500,000] would still be within the realm of reasonableness"). 129
The court, after consideration of the record in this case, is of the opinion that the
clear weight of the evidence did not contravene the jury's verdict as to the elements of
negligence, but that the evidence could not support an award $1 million for pain and
suffering. ~30 Accordingly, a remittitur of $500,000 will be granted.
With respect to the second assignment of error, that the court's charge to the jury
regarding damages was in error to the extent that it did not instruct the jury to consider
Mr. Norton's prior state of health,~3~ the court is of the opinion that the charge to the jury
129 In her brief, Plaintiff argues that Doe v. Raezer, 444 Pa. Super. 334, 664 A.2d 102
(1995), in which the Pennsylvania "Superior Court vacated the trial court's decision grant
a remittitur of $750,000 with respect to a verdict of $2.25 million, compels the court in
this case to deny the motion for remittitur." Pl.'s Brief in Opp'n to Def. Cytometry
Associates' Mot. for Post-Trial Relief, dated Feb. 7, 2003, at 40-41. However, in Raezer,
the injured party, who suffered sexual dysfunction from a negligently performed
operation, survived, and, thus, the jury was permitted to award damages not only for past
pain and suffering, but also for future pain and suffering, which were substantial. Raezer,
444 Pa. Super. at 347-48, 664 A.2d at 108-09. In contrast, Mr. Norton did not survive,
and, thus, could recover damages only for past, not future, pain and suffering.
~30 Or an aggregate award of $1 million for pain and suffering and for the loss to Mr.
Norton's children. See supra note 128 (discussing effect of the splitting of the damage
awards by jury).
~3~ Defendant Cytometry does not appear to challenge the court's action in permitting the
jury to receive the summary report of Mr. Hopkins's conclusions, but argues only that, if
the jury was permitted to view the report, the court should have instructed the jurors to
consider its conclusions in light of Mr. Norton's arguably limited life expectancy. See
Mots. for Post-Trial Relief by Def., Cytometry Associates, filed Nov. 25, 2002, para. 28;
Br. of Def., Cytometry Associates, in Supp. of Its Post-Trial Mots., dated Jan. 30, 2003,
at 47.
41
was appropriate in light of the evidence presented by Plaintiff.~32 Although the plaintiff
bears the burden of proving damages, including expected working lifespan, once
sufficient evidence has been presented to establish damages "with reasonable certainty,"
the court is obligated to charge the jury "on the concept supported by the plaintiffs
evidence," regardless of conflicting evidence presented by the defendant, "and the jury's
function is then to determine which evidence to credit." Wagner, 415 Pa. Super. at 14,
608 A.2d at 502; Pratt v. Stein, 298 Pa. Super. 92, 133, 444 A.2d 674, 696 (1982); see
also Bindschusz v. Phillips, 771 A.2d 803, 812-13 (Pa. Super. Ct. 2001), appeal denied,
567 Pa. 754, 790 A.2d 1012 (2001). As discussed previously,~33 Plaintiff presented ample
evidence to allow the jury to find that Mr. Norton, had he been diagnosed properly in the
first instance, could have been treated successfully and enjoyed a working life-span equal
to that on which Mr. Hopkins's conclusions were based. In accordance with this
evidence, the court instructed the jury that it may find that an anticipated life expectancy
of 40.9 years should be attributed to Mr. Norton for the purpose of computing future
damages. ~34 However, the court also stated that "It]his figure is offered to you only as a
guide, and you are not bound to accept it if you believe that [Mr. Norton] would have
lived longer or less than the average individual," and the court expressly charged the jury
"to consider [Mr. Norton's] health prior to the harm allegedly caused.., and other
factors that may have [a]ffected the duration of his life.''~35 Because the court instructed
132 Initially, it appears that this issue has not been preserved for review. Under
Pennsylvania Rule of Civil Procedure 227.1, "[p]ost-trial relief may not be granted unless
the grounds therefor,.., if then available, were raised.., by... objection,.., offer of
proof or other appropriate method at trial." Pa. R.C.P. 227.1. In the present case,
Defendant Cytometry did not raise an objection to the charge to the jury, which instructed
the jury that it may award damages based on loss of future earnings capacity. See N.T.
1330, 1364-67.
133 See supra text accompanying notes 115-21 (discussing evidence in support of finding
that Mr. Norton could have been cured).
134 N.T. 1357.
~35 N.T. 1357-58. The jury was also instructed that it was not obligated to accept the
testimony of any expert witness. N.T. 1350-51.
42
the jury that it should consider evidence relating to Mr. Norton's prior health in
determining whether to ascribe an average estimated life span to him, the court is of the
opinion that a new trial is not warranted on this ground.
With respect to the third assignment of error, that the jury was permitted to
consider damages suffered throughout Mr. Norton's expected working life span when
Plaintiff claimed damages only for the time in which Mr. Norton underwent CHOP
chemotherapy, the court is of the opinion that this issue is without merit.~36 A cursory
review of Plaintiff's complaint shows that Plaintiff sought recovery not only for lost
future earnings, but also for, inter alia, "permanent impairment of [future] earning power
capacity and earning capacity,''~37 and no document or evidence presented by Defendant
Cytometry suggests that Plaintiff later abandoned these claims, which are ordinarily
considered part of a wrongful death or survival action.~38
With respect to the fourth assignment of error, that the court allowed Plaintiff's
witnesses to testify as experts without sufficient qualification or without sufficient
foundation, this issue was not addressed in Defendant Cytometry's brief on its post-trial
motions, and, accordingly, it will be deemed abandoned. See C.C.R.P. 210-7 ("Issues
raised, but not briefed, shall be deemed abandoned.").~39
136 Initially, it appears that this issue has not been preserved for review. Under
Pennsylvania Rule of Civil Procedure 227.1, "[p]ost-trial relief may not be granted unless
the grounds therefor,.., if then available, were raised.., by... objection,.., offer of
proof or other appropriate method at trial." Pa. R.C.P. 227.1. In the present case,
Defendant Cytometry did not raise an objection either to the testimony of Mr. Hopkins,
who was presented for the primary purpose of establishing Mr. Norton's future earnings
capacity, or to the charge to the jury, which instructed the jury that it may award damages
based on loss of future earnings capacity. See N.T. 251-73, 1330, 1364-67.
137 P1.'s Compl., filed Aug. 14, 1996, para. 135.
~38 See supra note 106 (discussing damages available in wrongful death and survival
actions).
139 Specifically, Defendant Cytometry presented in its motion for post-trial relief, but did
not address in its brief, the allegations that "[t]he Learned Trial Judge erred and/or abused
its discretion by allowing Plaintiffs' medical experts to testify against the Defendant,
Cytometry Associates, and/or its technicians in performing, interpreting tests, and
43
With respect to the fifth assignment of error, that the court granted a directed
verdict for Dr. Swamidoss when evidence of Dr. Swamidoss's failure to communicate
with Defendant Cytometry and Dr. Patel was sufficient to support a finding of
negligence, the court is of the opinion that, because no evidence was admitted that
suggested that Dr. Swamidoss's actions fell below the applicable standard of care,~4° it
was appropriate to grant a directed verdict in favor of Dr. Swamidoss. Like a motion for
judgment N.O.V., a motion for a directed verdict should be granted only when,
considering the evidence admitted at trial in the light most favorable to the non-moving
parties, insufficient evidence exists to allow a reasonable juror to find in favor of the
moving party. See, e.g., Campo, 755 A.2d at 23. In cases in which the "alleged
negligence is medical in nature," except when the alleged errors are clearly within the
understanding of a layperson, the non-moving parties are required to introduce the
testimony of an expert witness to establish that the acts of the defendant deviated from
reporting test results," and by "allowing Dr. Strauchen to testify as to a purported
standard of care with regard to the reporting of flow cytometry test results." Mots. for
Post-Trial Relief by Def., Cytometry Associates, filed Nov. 25, 2002, para. 20(b)-(c). It
should be noted, however, that substantially the same issues raised by these allegations
were also raised by Defendant Cytometry's allegations that the court erred in failing to
limit Dr. Strauchen's testimony and in denying a pre-trial motion in limine to preclude
Plaintiff's experts from testifying as to flow cytometry and gene rearrangement testing.
Id para. 20(k). The latter allegations were addressed in Defendant Cytometry's brief, see
Br. of Def., Cytometry Associates, in Supp. of Its Post-Trial Mots., dated Jan. 30, 2003,
at 52-59, and, therefore, will be considered later in this opinion.
~40 Although no evidence suggesting negligence on the part of Dr. Swamidoss was
admitted, Defendant Cytometry did attempt to introduce expert testimony by Dr. Algazy
that, according to Defendant Cytometry, would have provided sufficient evidence to
defeat Dr. Swamidoss's motion for a directed verdict. See Br. of Def., Cytometry
Associates, in Supp. of Its Post-Trial Mots., dated Jan. 30, 2003, at 51-52. Because the
court determined that Dr. Algazy was not qualified to give an opinion as to the standard
of care applicable to Dr. Swamidoss, this question has been rendered moot. See Lilley v.
Johns-Manville Corp., 408 Pa. Super. 83, 103, 596 A.2d 203, 213 (1991) (stating that
only evidence admitted at trial should be considered in ruling on motion for directed
verdict); see also UnitedRef. Co. v. Jenkins, 410 Pa. 126, 133-34, 189 A.2d 574, 577-78
(1963). The propriety of the court's determination as to the qualifications of Dr. Algazy
will be addressed later in this opinion.
44
accepted medical standards in the field. 14/atkins v. Hosp. of Univ. of Pa., 737 A.2d 263,
265-66 (Pa. Super. Ct. 1999); see alsoMitze~klt, 526 Pa. at 62, 584 A.2d at 891; Beach v.
Burns Iht'! Sec. Servs., 406 Pa. Super. 160, 164, 593 A.2d 1285, 1286 (1991). In this
case, Defendant Cytometry alleged that Dr. Swamidoss was negligent in failing, after
receipt of the first report from Defendant Cytometry, to inform Dr. Patel not to
commence chemotherapy until subsequent tests were completed and in failing, after
receipt of subsequent reports from Defendant Cytometry, to notify Dr. Patel of the
discrepancy in the findings among the reports or to request further information from
Defendant Cytometry. Resolution of these allegations would require the factfinder to
understand, at a minimum, the results and conclusions provided by Defendant Cytometry
in each report and the role of a pathologist such as Dr. Swamidoss in interpreting these
results and forwarding them to an oncologist. These issues are clearly beyond the
knowledge of an average layperson, and, accordingly, expert testimony was required to
support a cause of action against Dr. Swamidoss. Because no expert testimony was
admitted in this case that suggested that Dr. Swamidoss's actions fell below the accepted
standard of care,~4~ the granting of a directed verdict in favor of Dr. Swamidoss was
appropriate.
With respect to the sixth assignment of error, that the court erred in allowing Dr.
Auerbach to testify as to the impact of Defendant Cytometry's reports on Dr. Patel's
treatment decisions,~42 the court is of the view that the testimony offered by Dr. Auerbach
~4~ See, e.g., N.T. 1323 (statement of counsel for Defendant Cytometry) ("The rulings of
the Court were such that no expert was qualified to give [an expert opinion to the effect
that Dr. Swamidoss was negligent;] so, I would agree, there is none .... ").
142 Initially, the court is of the view that this issue was not preserved by a timely objection
during trial. Under Pennsylvania Rule of Civil Procedure 227.1, "[p]ost-trial relief may
not be granted unless the grounds therefor,.., if then available, were raised.., by...
objection,.., offer of proof or other appropriate method at trial." Pa. R.C.P. 227.1. In the
present case, Defendant Cytometry did not object to Dr. Auerbach's qualification as an
expert in hematology, oncology, and internal medicine, see N.T. 325, and, during Dr.
Auerbach's extensive testimony, raised no objection to Dr. Auerbach's testimony as to
the propriety of Dr. Patel's treatment decisions based upon the information available to
45
was properly admissible as expert opinion evidence. Under Pennsylvania Rules of
Evidence 703 and 704, an expert in a medical malpractice case is permitted to offer an
opinion, based on a review of the materials available to the treating physician at the time
of diagnosis and treatment, as to whether the physician's actions fell below the applicable
standard of care. See Pa. R.E. 703 ("The facts or data in the particular case upon which an
expert bases an opinion or inference may be those perceived by or made known to the
expert at or before the hearing."); Pa. R.E. 704 ("Testimony in the form of an opinion or
inference otherwise admissible is not objectionable because it embraces an ultimate issue
to be decided by the trier of fact."); Wasserman v. Fifth & Reed Hosp., 442 Pa. Super.
563, 576, 660 A.2d 600, 607 (1995) ("[A]n expert may properly base an opinion on
assumed facts which are supported by evidence in the record and conveyed in the form of
a hypothetical question."). In the present case, Dr. Auerbach testified that, having
reviewed the reports available to Dr. Patel and entered into evidence in this case, "[g]iven
the information that Dr. Patel had, [Dr. Patel] had every reason to believe Mr. Norton had
a lymphoma" and, "[b]ased on that information, the [treatment] that he gave [was]
proper.''~43 Although Dr. Auerbach often framed his answers in terms of what the reports
led "Dr. Patel to believe,''~44 it is clear from a complete review of Dr. Auerbach's
testimony that this phrase should not be interpreted as commenting on Dr. Patel's own
subjective state of mind, but expressing the propriety of Dr. Patel's treatment decision
under the standards followed in the professional community. Accordingly, the testimony
was properly admissible as expert opinion evidence.
With respect to the seventh assignment of error, that the court refused to allow Dr.
Kenneth M. Algazy to testify as to the standard of care applicable to Dr. Swamidoss and
Dr. Patel at the times in question, see, e.g., 333-34,
issue has not been preserved for post-trial review.
143 N.T. 334.
144 N.T. 344.
338-39, 344-45. Accordingly, this
46
Dr. Ronald C. McGlennen to testify as to the standard of care applicable to Dr. Patel,145
the court is of the opinion that the rulings limiting their testimony did not represent an
abuse of discretion. Although the Pennsylvania standard for qualifying a witness as an
expert is "liberal," requiring only that the witness "possess more expertise than is within
the ordinary range of training, knowledge, intelligence, or experience," courts adhere to
the rule that, regardless of the witness's own professions of expertise in a particular field,
the witness may be qualified as an expert only if he or she "possesses [either] experience
[or] education in the subject matter under investigation.''146 I/acoub v. Lehigh Valley Meal
Assocs., 805 A.2d 579, 591-92 (Pa. Super. Ct. 2002) (en banc) (holding that
neurosurgeon who was not certified in internal medicine, had never practiced internal
medicine, rarely practiced in a hospital setting, and had not read or published extensively
in field of internal medicine or nursing was not qualified to testify as an expert in internal
medicine or nursing even though he interacted with professionals in both fields); Dierolf
v. Slade, 399 Pa. Super. 9, 13, 581 A.2d 649, 651 (1990) (affirming holding of trial court
that an orthodontist who had no clinical experience in the practice of surgery was not
qualified to testify as an expert in oral surgery even though the orthodontist "discusse[d]
surgery with the oral surgeons, ha[d] observed oral surgeries in the past, and ha[d]
testified as an expert.., in several medical malpractice cases"), cited ~vith approval in
I/acoub, 805 A.2d at 591.147 As to Dr. Algazy, whom Defendant Cytometry sought to
145 Counsel for Defendant Cytometry stipulated at trial that, on the basis of his expert
report, Dr. McGlennen could not testify as to the standard of care applicable to Dr.
Swamidoss. See N.T. 1267-68.
146 In other words, the analysis for qualifying a witness as an expert encompasses two
components, to which different standards attach: (1) the scope of the witness's expertise,
to which courts apply a relatively strict requirement that the witness's education or
experience clearly relate to the specific subject matter of the case, and (2) the depth of the
witness's expertise, to which courts apply a relatively liberal requirement that the witness
possess only more knowledge than a layperson. See Yacoub v. Lehigh Valley Meal
Assocs., 805 A.2d 579, 591-92 (Pa. Super. Ct. 2002) (en banc).
147 It should be noted that Medical Care Availability and Reduction of Error Act,
although not applicable to the present case, codifies the "subspecialty" requirement to
47
qualify as an expert in pathology but who was precluded from testifying as to whether Dr.
Swamidoss's actions fell below the standard of care applicable to pathologists,~48 the
court is of the opinion that Defendant Cytometry offered insufficient evidence to
establish his expertise in the field of pathology. According to his voir dire testimony and
his curriculum vitae, Dr. Algazy, an oncologist, had not done a residency or fellowship in
pathology, had never practiced pathology, and, apparently, had neither published nor
researched extensively in pathology. 149 Although Dr. Algazy testified that he worked with
pathologists "[o]n a daily basis," Dr. Algazy did not state that he had ever participated in,
or even viewed, the pathologists' work, and the subspecialties of oncology and pathology
are not so related so as to permit an inference that expertise is equivalent to expertise in
the other.~5° CJ. Montgomery v. S. Phila. Med Group, Inc., 441 Pa. Super. 146, 152-54,
656 A.2d 1385, 1388-89 (1995) (holding that, because the expertise of a physician's
assistant is necessarily subsumed within the expertise of a physician in the same field, the
physician could testify as to the standard of care applicable to the physician's assistant).
Thus, while Dr. Algazy was clearly competent to testify as an expert in the field of
oncology, the scope of his expertise did not extend to pathology,~5~ meaning that he had
no "reasonable pretension to specialized knowledge on the subject under investigation."
See Yacoub, 805 A.2d at 591.
As to Dr. McGlennen, whom Defendant Cytometry sought to qualify as an expert
in oncology but who was precluded from testifying as to whether Dr. Patel's action in
treating Mr. Norton upon receipt of the first report of Defendant Cytometry fell below the
which these cases allude. See Act of Mar. 20, 2002, P.L. 154, 40 P.S. § 1303.512 (West
2002).
148 N.T. 1065-67.
149 N.T. 1064-67; Def. Cytometry's Ex. 23.
~o See N.T. 181-82.
~ See supra note 146 (discussing scope and depth requirements for expert witness
qualification).
48
applicable standard of care,~52 the court is of the opinion that Defendant Cytometry
offered insufficient evidence to establish his expertise in the field of oncology. According
to his voir dire testimony and his curriculum vitae, Dr. McGlennen, a board certified
pathologist and a professor of pathology, had not done a residency or fellowship in
oncology, had neither practiced oncology nor acted as a "clinician" involved in patient
therapy, and, although he had published extensively in the field of pathology, had neither
published nor researched extensively in oncology. ~53 Dr. McGlennen could not state that
he was "familiar with how oncologists interpret reports" from entities such as Defendant
Cytometry, but testified only that he was had knowledge of how oncologists "receive
and/or incorporate" such information, although Dr. McGlennen did not state how his
experience or education provided him with such knowledge.~s4 Thus, in this case, the
scope of Dr. McGlennen's expertise did not extend to the practice of oncology and
patient treatment,~ss meaning that he had no "reasonable pretension to specialized
knowledge on the subject under investigation.''~s6 See I/acoub, 805 A.2d at 591.
With respect to the eighth assignment of error, that the court precluded evidence
that Defendant Cytometry's bills were paid by insurance, this issue was not addressed in
Defendant Cytometry's brief on its post-trial motions, and, accordingly, it will be deemed
abandoned. See C.C.R.P. 210-7 ("Issues raised, but not briefed, shall be deemed
abandoned.").
With respect to the ninth assignment of error, that the court failed to give a
missing witness jury instruction with respect to Dr. Stephen Gore, Mr. Norton's treating
~52 N.T. 1263, 1273.
~s3 N.T. 1253-73; Def. Cytometry's Ex. 11.
~s4 N.T. 1253-73.
~ See supra note 146 (discussing scope and depth requirements for expert witness
qualification).
156 In accordance with his testimony, which established his experience in formulating
diagnoses on the basis of reports issued by entities such as Defendant Cytometry, Dr.
McGlennen was permitted to testify as to his opinion on whether a diagnosis could be
made on the basis of the reports issued by Defendant Cytometry. N.T. 1273
49
physician, who prepared an expert report critical of Defendant Cytometry but did not
testify during trial, the court is of the opinion that a missing witness instruction was not
warranted because Dr. Gore was equally available to Plaintiff and Defendant Cytometry
and Dr. Gore's testimony would have been merely cumulative of other evidence
presented at trial.
Generally, if a litigant fails to call a witness who presumably would
support his allegation, the opposing party is entitled to have the jury
instructed that it may infer that the witness, if called, would testify
adversely to the party who failed to call him. But this rule is inapplicable if
such witness is equally available to both sides of the litigation. In other
words, the inference is permitted only where the uncalled witness is
peculiarly within the reach and knowledge of only one of the parties.
Bentivog/io v. Ra/xton, 447 Pa. 24, 29, 288 A.2d 745, 748 (1972). Thus, in order for a
missing witness instruction to be warranted, the testimony that the witness is expected to
offer must be materially beneficial to one party, and not merely cumulative, and the
adverse party's ability to obtain the witness's testimony even in the "exercise of
reasonable diligence''~57 must be somehow limited by a lack of disclosure, the existence
of a privilege, or the operation of procedural rules. Id. at 29-30, 288 A.2d at 748; Kovach
v. Solomon, 732 A.2d 1, 8-9 (Pa. Super. Ct. 1999). In the present case, Dr. Gore, an
oncologist with Johns Hopkins Medical Center in Baltimore, Maryland, was one of Mr.
Norton's treating physician, and was identified as such by Plaintiff in the initial
complaint in this case.~58 Although Defendant Cytometry arguably would have needed
~57 The concept of "reasonable diligence" incorporates considerations of justifiable
reliance, meaning that, even if the adverse party had the ability to obtain the witness's
testimony through available procedural mechanisms, the failure to do so will be excused
if the adverse party reasonably relied on misleading or erroneous statements by opposing
counsel or the operation of a procedural rule. Kovach v. Solomon, 732 A.2d 1, 10-12 (Pa.
Super. Ct. 1999) (finding that "missing witness" instruction adverse to the plaintiff was
warranted in circumstances in which the defendant, in failing to call the witness,
justifiably relied on opposing counsel's witness list, which indicated that witness would
be called, on the basis of a local rule providing that, if a witness is so listed, the party
must call the witness at trial).
~58 See Pl.'s Compl., filed Aug. 14, 1996, para. 52.
50
Plaintiff's consent to contact Dr. Gore in order to request his testimony at trial, see Pa.
R.C.P. 4003.6 ("Information may be obtained from the treating physician of a party only
upon written consent of that party or through a method of discovery authorized by this
chapter."), Defendant Cytometry apparently did not take the minimal step of requesting
his presence, even though it had no justifiable reason to assume that Plaintiff would call
Dr. Gore,~59 who was not retained as an expert under Pennsylvania Rule of Civil
Procedure 4003.5. Even without Plaintiff's consent, Defendant Cytometry could have, at
any time during the six-year history of this case, taken the deposition of Dr. Gore,~6°
which likely would have been admissible at trial if Dr. Gore had been unavailable as a
witness.~6~ Defendant Cytometry neither presented evidence nor suggested that it took
any steps to seek such consent or otherwise conduct discovery of Dr. Gore. Because
Defendant Cytometry did not establish that it was somehow precluded from calling Dr.
Gore, a missing witness instruction was not warranted in this case.
Further, even assuming arguendo that Dr. Gore could be considered unavailable to
Defendant Cytometry, the court is of the opinion that an adverse instruction on this point
was not appropriate because his testimony would have been merely cumulative. Prior to
159 Counsel for Defendant Cytometry explained its decision not to subpoena Dr. Gore as
follows:
[A]t the last status conference, [Plaintiff's counsel] had indicated to all of
us that he planned to take the deposition, a videotaped deposition of Dr.
Gore .... And then at the last minute, he changed his mind. So we
assumed that he was bringing in Dr. Gore live to testify at trial.
In terms of justifiable reliance, the court is of the opinion that Defendant Cytometry's
failure to call Dr. Gore was warranted neither by Plaintiff's representation that it would
take a videotaped deposition of Dr. Gore nor by its subsequent failure to do so. No
procedural rule compels a party to make use of deposition testimony, transcribed or
videotaped, and, similarly, no rule compels a party who does not take a deposition of a
witness to call that witness at trial on penalty of an adverse missing witness instruction.
~60 See Act of July 9, 1976, P.L. 586, 42 Pa. C.S. § 5325; Pa. R.C.P. 4007.1; see a/so Pa.
R.C.P. 4003.6 ("Information may be obtained from the treating physician of a party only
upon written consent of that party or through a method of discovery authorized by this
chapter.").
51
Cytometry's brief on its
abandoned. See C.C.R.P.
abandoned.").
the charge to the jury, Defendant Cytometry argued that a missing witness instruction
was appropriate because Dr. Gore's testimony could have established that Dr. Gore had
told Plaintiff that Dr. Patel had misdiagnosed Mr. Norton and that Defendant Cytometry's
reports did not support the diagnosis of lymphoma. However, evidence of both these
allegations was presented in the testimony of Plaintiff, who stated that Dr. Gore had told
her and Mr. Norton that the initial diagnosis or lymphoma was incorrect and that the
reports relied on by Dr. Patel were "inconclusive,''~62 a conclusion with which Defendant
Cytometry's experts substantially agreed.~63 Because the testimony of Dr. Gore would
have been substantially cumulative, a missing witness instruction was not necessitated by
Plaintiff' s decision not to call Dr. Gore.
With respect to the tenth assignment of error, that the court, prior to trial, refused
to allow Defendant Cytometry to supplement expert reports after the receipt of additional
reports from Dr. Swamidoss and Dr. Patel, this issue was not addressed in Defendant
post-trial motions, and, accordingly, it will be deemed
210-7 ("Issues raised, but not briefed, shall be deemed
With respect to the eleventh assignment of error, that the court, prior to trial,
refused to allow Defendant Cytometry to obtain cytogenetics material from the Kennedy
Kreiger Institute, the court is of the opinion that this ruling, based on the expiration of a
previously established discovery deadline, did not represent an abuse of discretion. In
determining whether an extension of a discovery deadline is warranted in a particular
case, the court should consider the moving party's ability to conduct the requested
discovery previously, the validity of any excuse by the moving party for failing to make
such discovery, any bad faith on the part of the moving party, and potential prejudice to
other parties resulting from the discovery. Cf. Williams v. Southeastern Pa. Transp.
161 See Pa. R.C.P. 4020(a).
162 N.T. 449-51,474-75.
163 See ,e.g., N.T. 1018-21.
52
Auth., 741 A.2d 848, 855 n.7 (Pa. Commw. Ct. 1999) (citing Feingold v. Southeastern
Pa. Transp. Auth., 512 Pa. 567, 517 A.2d 1270 (1986)). In the present case, the material
sought by Defendant Cytometry, which dealt with Mr. Norton's chromosomal condition
and potentially would have supported Defendant Cytometry's claim that Mr. Norton
would not have survived even had he received the proper treatment for leukemia initially,
was identified in Mr. Norton's medical records, which had been turned over to Defendant
Cytometry previously.164 Defendant Cytometry had over five years in which to request
this information;165 yet, it did not do so and could offer no reasonable and justified
explanation for this failure. Further, granting Defendant Cytometry's motion to extend
the discovery deadline on October 23, 2002, so close to the trial date of November 4,
2002, which had been conclusively set by order of the court after several previous
continuances,166 the most recent at the request of Defendant Cytometry, would have
prejudiced other parties, who would have been forced to respond to this new evidence
without being able to conduct discovery of their own.167 In these circumstances, it was
the view of the court that the discovery deadline established by consent of the parties
should stand.
Further, it is believed that any error in denying Defendant Cytometry's motion for
an extension of the discovery deadline is appropriately considered harmless. As discussed
previously, Defendant Cytometry presented substantial evidence to suggest that Mr.
Norton suffered from a chromosomal defect that lessened his chance of survival,~6a and,
as such, further evidence of this condition would have been merely cumulative. See
Yacoub, 805 A.2d at 586 (stating that, in order to warrant the grant of a new trial, errors
164 See N.T. 3-20, Hr'g, Oct. 23, 2002.
165 [d.
166 [d.
167 See id.
168 See supra notes 115-21 and accompanying text (discussing evidence relating to
chromosomal condition and impact on Mr. Norton's life expectancy).
53
in evidentiary rulings must have adversely affected the moving party in terms of the
jury' s verdict).
With respect to the twelfth assignment of error, that the court, prior to trial, denied
Defendant Cytometry's summary judgment motion without providing an opinion in
support of its order, this issue was not addressed in Defendant Cytometry's brief on its
post-trial motions, and, accordingly, it will be deemed abandoned. See C.C.R.P. 210-7
("Issues raised, but not briefed, shall be deemed abandoned.").
With respect to the thirteenth assignment of error, that the court, prior to trial,
denied Defendant Cytometry's motions in limine to preclude the testimony of Dr.
Strauchen, Dr. Gore, and Dr. Auerbach as to the standard applicable to Defendant
Cytometry in 1995, the court is of the opinion that the rulings did not represent an abuse
of discretion. As discussed previously, provided a witness "possesses [either] experience
[or] education in the subject matter under investigation," the witness may be qualified as
an expert if he or she "possess[es] more expertise than is within the ordinary range of
training, knowledge, intelligence, or experience.''~69 Yacoub, 805 A.2d at 591-92. In the
present case, Dr. Strauchen's curriculum vitae, and his later voir dire testimony,
established that, as medical director for flow cytometry at Mt. Sinai School of Medicine,
a post he held in the mid-1990s, Dr. Strauchen conducted analyses of flow cytometry,
conducted interpretation of gene rearrangement studies, and supervised technicians in
conducting flow cytometry and interpreting gene rearrangement studies.~7° Based on this
experience in the field of flow cytometry, which clearly places Dr. Strauchen's
knowledge above that of the average layperson, Dr. Strauchen was qualified to offer
expert testimony as to the standard of care applicable to cytometry labs in 1995, and
Defendant Cytometry's motion to preclude his testimony was properly denied.
As to Dr. Gore and Dr. Auerbach, the court is of the opinion that Defendant
Cytometry's contention that a pretrial motion in limine to preclude their testimony should
169 See supra note 146 (discussing scope and depth requirements for expert witness
qualification).
170 See Pl.'s Ex. 43; see also N.T. 20-43.
54
have been granted because "they were not qualified to testify regarding the standard of
care applicable to technicians and geneticists performing flow cytometric testing and
gene rearrangement studies''~7~ is without merit. In order to warrant the grant of a new
trial, errors in evidentiary rulings must have adversely affected the moving party in terms
of the jury's verdict. Yacoub, 805 A.2d at 586. In this case, Dr. Auerbach was ultimately
neither offered nor qualified as an expert in the field of flow cytometry or gene
rearrangement studies, and Dr. Gore was not called to testify.~72 Accordingly, any
potential error in the denial of the motion in limine, which sought to preclude the
witnesses' testimony only as experts in flow cytometry,~73 was mooted by Plaintiff's
decision not to call either Dr. Auerbach or Dr. Gore as an expert in that field, and any
error in the court's pretrial ruling is properly considered harmless.
Finally, with respect to the fourteenth assignment of error, that the court, prior to
trial, denied Defendant Cytometry's motion for a Frye~74 hearing with respect to the
testimony of Dr. Strauchen, the court is of the opinion that a Frye hearing was not
required prior to finding that Dr. Strauchen was qualified to testify as to the standard of
care applicable to cytometry labs in 1995. Initially, it is important to note that "Frye does
not apply every time science enters the courtroom." Trach v. Fellin, No. 1921 EDA 2000,
2003 WL 282804, at *5 (Pa. Super. Ct. Feb. 11, 2003). A Frye hearing is not required in
every circumstance in which an expert proposes to testify on a subject that can be
abstractly described as "novel" or "complex";~75 rather, such a hearing is mandated only
when the conclusions to be expressed in proposed expert testimony implicate
~7~ Br. of Def., Cytometry Associates, in Supp. of Its Post-Trial Mots., dated Jan. 30,
2003, at 58.
~7~ See N.T. 315-17.
~73 See Def., Cytometry Associates' Mot. in Limine, filed Oct. 30, 2002.
174 Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).
~7~ See Trach, 2003 WL 282804, at *6 ("Clearly, however, our supreme court did not
intend that trial courts be required to apply the Frye standard every time scientific experts
are called to render an opinion at trial, a result that is nothing short of Kafkaesque to
contemplate.").
55
methodological concerns. Id at *8; see ala'o Blum ex tel. Blum v. Merrell Dow Pharm.,
Inc., 705 A.2d 1314, 1317 (Pa. Super. Ct. 1997) (stating that Frye applies to test
"scientific methodology" employed by expert in reaching conclusions), aff'd, 564 Pa. 3,
764 A.2d 1 (2000). In other words, Frye applies only when an expert intends to offer an
opinion based on experimentation or other empirical testing method and when that
method, not necessarily the conclusion reached, is not generally accepted by the scientific
community. Trach, 2003 WL 282804, at *8 ("Frye only applies to determine if the
relevant scientific community has generally accepted the principles and methodology the
scientist employs, not the conclusions the scientist reaches .... "). In contrast, in the
present case, the proposed testimony of Dr. Strauchen to which Defendant Cytometry
objected consisted only of his opinions as to the generally applicable standard of care in
the field of cytometric analysis.176 His testimony was not based on empirical study or
experimentation, but rather consisted of his professional views as to the antibody panels
commonly used and the reporting procedures employed in the field.177 Because these
statements did not implicate methodological concerns, Frye was not applicable and it was
appropriate to deny Defendant Cytometry's request for a Frye hearing.
For the foregoing reasons, the following order will be entered:
176 See, e.g., N.T. 41.
177 See N.T. 41, 60-63.
56
ORDER OF COURT
AND NOW, this 25th day of March, 2003, upon consideration of the "Motions for
Post-Trial Relief by Defendant, Cytometry Associates," and for the reasons stated in the
accompanying opinion, the motions are denied conditioned upon Plaintiff's filing of an
acceptance of a remittitur in the amount of $500,000, subject to a corresponding decrease
in delay damages, within ten days of the date of this order. In the event of Plaintiff's
failure to file a timely acceptance of the remittitur, a new trial on the issue of damages is
awarded and the motions are otherwise denied.
BY THE COURT,
s/ J. Wesley Oler, Jr.
J. Wesley Oler, Jr., J.
Joseph M. Melillo, Esq.
4503 North Front Street
Harrisburg, PA 17110
Attorney for Plaintiff
Randall G. Gale, Esq.
305 North Front Street
6th Floor
P.O. Box 999
Harrisburg, PA 17108
Attorney for Defendants Shashikant B. Patel, MD., Andrews & Patel Associates, P.C.
Andrew H. Foulkrod, Esq.
1800 Linglestown Road
Suite 305
Harrisburg, PA 17110
Attorney for Defendant Stephenson Swamidoss, M.D.
57
Katherine B. Kravitz, Esq.
126 East King Street
Lancaster, PA 17602
Attorney for Defendant Holy Spirit Hospital
Sharon M. O'Donnell, Esq.
4200 Crams Mill Road
Suite B
Harrisburg, PA 17112
Attorney for Defendant Cytometry Associates
Paul A. Bechtel, Jr., Esq.
1845 Walnut Street
Philadelphia, PA 19103-4797
Attorney for Defendant Cytometry Associates
Maureen A. Gallagher, Esq.
John A. Snyder, Esq.
600 Centerview Drive
Suite 5103
Hershey, PA 17033
Attorneys for Defendants Klaus F. Helm, M.D., Hershey Medical Center
Michael M. Badowski, Esq.
P.O. Box 932
Harrisburg, PA 17108-0932
Attorney for Defendants Him G. Kwee, M.D., Harrisburg Hospital
James W. Kraus, Esq.
58th Floor USX Tower
600 Grant Street
Pittsburgh, PA 15219
Attorney for Defendants Anastasius O. Peter, M.D., Susquehanna Surgeons, Ltd.
58
LARRY NORTON and
ALISA NORTON,
Plaintiffs
Vo
SHASHIKANT B. PATEL, MD.,:
ANDREWS & PATEL
ASSOCIATES, P.C.,
ANASTASIUS O. PETER, M.D.,:
SUSQUEHANNA SURGEONS,
LTD., STEPHENSON
SWAMIDOSS, M.D., DEAN G.
TAYLOR, M.D., and
CYTOMETRY ASSOCIATES,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 96-4556 CIVIL TERM
ALISA NORTON, Individually
and as Executrix of the ESTATE
OF LARRY NORTON,
Deceased,
Plaintiff
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
Vo
CIVIL ACTION - LAW
KLAUS F. HELM, M.D., THE
HERSHEY MEDICAL CENTER,:
HIM G. KWEE, M.D.,
HARRISBURG HOSPITAL, and:
HOLY SPIRIT HOSPITAL,
Defendants
NO. 97-7057 CIVIL TERM
IN RE: MOTIONS FOR POST-TRIAL RELIEF BY
DEFENDANT, CYTOMETRY ASSOCIATES
BEFORE HOFFER, P.J., AND OLER, J.
ORDER OF COURT
AND NOW, this 25th day of March, 2003, upon consideration of the "Motions for
Post-Trial Relief by Defendant, Cytometry Associates," and for the reasons stated in the
accompanying opinion, the motions are denied conditioned upon Plaintiff's filing of an
acceptance of a remittitur in the amount of $500,000, subject to a corresponding decrease
in delay damages, within ten days of the date of this order. In the event of Plaintiff's
failure to file a timely acceptance of the remittitur, a new trial on the issue of damages is
awarded and the motions are otherwise denied.
BY THE COURT,
J. Wesley Oler, Jr., J.
Joseph M. Melillo, Esq.
4503 North Front Street
Harrisburg, PA 17110
Attorney for Plaintiff
Randall G. Gale, Esq.
305 North Front Street
6th Floor
P.O. Box 999
Harrisburg, PA 17108
Attorney for Defendants Shashikant B. Patel, MD., Andrews & Patel Associates, P.C.
Andrew H. Foulkrod, Esq.
1800 Linglestown Road
Suite 305
Harrisburg, PA 17110
Attorney for Defendant Stephenson Swamidoss, M.D.
Katherine B. Kravitz, Esq.
126 East King Street
Lancaster, PA 17602
Attorney for Defendant Holy Spirit Hospital
Sharon M. O'Donnell, Esq.
4200 Crums Mill Road
Suite B
Harrisburg, PA 17112
Attorney for Defendant Cytometry Associates
Paul A. Bechtel, Jr., Esq.
1845 Walnut Street
Philadelphia, PA 19103-4797
Attorney for Defendant Cytometry Associates
Maureen A. Gallagher, Esq.
John A. Snyder, Esq.
600 Centerview Drive
Suite 5103
Hershey, PA 17033
Attorneys for Defendants Klaus F. Helm, M.D., Hershey Medical Center
Michael M. Badowski, Esq.
P.O. Box 932
Harrisburg, PA 17108-0932
Attorney for Defendants Him G. Kwee, M.D., Harrisburg Hospital
James W. Kraus, Esq.
58th Floor USX Tower
600 Grant Street
Pittsburgh, PA 15219
Attorney for Defendants Anastasius O. Peter, M.D., Susquehanna Surgeons, Ltd.