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HomeMy WebLinkAbout2007-749 LaQUANTA KELSO, as : IN THE COURT OF COMMON PLEAS OF Administratrix of the Estate of : CUMBERLAND COUNTY, PENNSYLVANIA Yvette D. Kelso, Deceased, : PLAINTIFF : : : V. : : SHIPPENSBURG FAMILY : PRACTICE, LTD., : JOHN A. YARWOOD, PA-C : AND HOWARD M. : LEBOW, M.D., : DEFENDANTS : NO. 07-0749 CIVIL TERM IN RE: PLAINTIFF’S POST-TRIAL MOTIONS BEFORE MASLAND, J. OPINION AND ORDER OF COURT Masland, J., December 10, 2010:-- This case is before the court on plaintiff’s motion for post-trial relief seeking a new trial. After a five day trial, which commenced on April 26, 2010, the jury returned a verdict for the defense. Plaintiff claims the court erred in the following ways: (1) The court erred in overruling plaintiff’s motion in limine to preclude defendants from introducing evidence regarding the decedent’s lack of compliance with medical recommendations. (2) The court erred in overruling plaintiff’s motion in limine to preclude defendants from introducing evidence concerning decedent’s history of smoking and alcohol use. (3) The court erred in overruling plaintiff’s objection at trial to testimony from defendants’ expert, David Harris, M.D., regarding the decedent’s past history of smoking and alcohol use. (4) The court erred in overruling plaintiff’s motion in limine to preclude defendants’ expert, William Curry, M.D., from testifying regarding the revised Geneva score. NO. 07-0749 CIVIL TERM (5) The court erred in overruling plaintiff’s objection at trial to testimony by defendants’ expert, William Curry, M.D., regarding the timing of the development of the decedent’s pulmonary embolism. (6) The court erred in overruling plaintiff’s objection at trial to testimony by defendants’ expert, David Harris, M.D., regarding the emotional effects of decedents’ obesity. (7) The court erred by adding explanatory language to Pennsylvania Suggested Standard Jury Instruction 5.06 regarding spoliation of evidence. In addition to the preceding claims of error, the plaintiff requests a new trial because of alleged prejudicial comments by defense counsel during closing argument. I. Statement of Facts This is a wrongful death and survival action filed by plaintiff, LaQuanta Kelso, the decedent’s daughter, arising from the alleged failure of defendants, Shippensburg Family Practice, LTD., (“SFP”), and John A. Yarwood, PA-C, (“Mr. Yarwood”) to diagnose and properly treat Yvette Kelso (“decedent”) for a blood clot and pulmonary embolism (“PE”) on June 22, 2004. On that date, decedent reported to the walk-in clinic at SFP and was evaluated by Mr. Yarwood. Decedent complained of shortness of breath and indicated she had had the symptoms for “a couple of weeks.” During his examination, Mr. Yarwood requested an echocardiogram of decedent’s cardiopulmonary system and interpreted the results to be within normal limits. Mr. Yarwood’s diagnosis was “shortness of breath – questionably bronchospastic rather than cardiopulmonary in origin.” Mr. Yarwood sent decedent for a chest x-ray performed by Philip -2- NO. 07-0749 CIVIL TERM Sabri, M.D. (“Dr. Sabri”), which showed “sub-segmented atelectasis at both bases; hypoventilatory chest; no congestive heart failure; but if PE diagnostically considered CTA of chest recommended.” Following the physical examination, Mr. Yarwood did not consider PE as one of the potential diagnoses, and ultimately diagnosed decedent as having bronchitis. Decedent was prescribed Zithromax 500 mg and Combovent inhaler as needed. She was instructed to return to the office with any further worries or concerns. Mr. Yarwood’s notes of examination were reviewed that day by his 1 physician supervisor, Babek Pehta, M.D. (“Dr. Pehta”). Additionally, Dr. Pehta reviewed the final report of the chest x-ray, which did not suggest the need for a follow-up, and agreed with Mr. Yarwood’s recommended treatment. On June 23, 2004 through June 24, 2004, decedent travelled by bus to Atlanta, Georgia. Upon arrival, she presented to the emergency room of the Grady Memorial Hospital (“Grady”) complaining of shortness of breath and chest pain. While at Grady, decedent was diagnosed with extensive bilateral pulmonary embolism and deep vein thrombosis in her right lower extremity. Over the first several hours she experienced episodes of distress, but was comforted by her daughter, the plaintiff, in a series of telephone conversations described to the jury over defendants’ objections. In the few hours which preceded her death, Pennsylvania regulations governing the work of physician assistants requires 1 that they be supervised by a physician and work within the practice of said physician. -3- NO. 07-0749 CIVIL TERM decedent’s experienced extreme pain, anxiety, and distress. She suffered a cardiopulmonary arrest and died at 6:45 p.m. on June 25, 2004. II. Procedural History After extensive discovery, trial was scheduled for the week of April 26, 2010. Prior to trial, Howard M. Lebow, M.D. (“Dr. Lebow”) a medical supervisor at SFP was released from the case by way of stipulation. Before jury selection, the court heard oral argument on the parties’ numerous motions in limine and, where appropriate, issued rulings at that time. N.T. vol. I, 2-32. During the week of trial, plaintiff called decedent’s husband, daughter (plaintiff), radiology personnel, Dr. Lebow, Dr. Pehta, and Philip H. Shayne, M.D. (“Dr. Shayne”) and two experts. Defense witnesses included SFP personnel and two experts. After the close of testimony, the court held a charge conference on the afternoon of April 29, 2010, and continued the conference in chambers on the morning of April 30, 2010. Closing argument occurred on the morning of April 30, 2010, followed by the charge to the jury. After listening intently to all of the evidence and deliberating for approximately three hours, the jury found in favor of the defendants on negligence. Plaintiff filed timely post-trial motions and argued the same on September 8, 2010. For the reasons which follow we deny plaintiff’s motions. III. Discussion A new trial may be granted on the basis of erroneous evidentiary rulings if the trial court abused its discretion or committed an error of law which controlled the outcome of the case. Braun v. Target Corp., 983 A.2d 752, 759-60 (Pa. -4- NO. 07-0749 CIVIL TERM Super. 2009). In determining whether a new trial is appropriate, the trial court must follow a two-step process. Harman ex rel. Harman v. Borah, 756 A.2d 1116, 1122 (Pa. 2000). First, the court must determine if there were any factual, legal, or discretionary mistakes at trial, and second, if such mistakes occurred, do they provide a sufficient basis for granting a new trial. Id. Moreover, the mere existence of mistakes does not provide such a basis unless the moving party demonstrates that prejudice resulted from the mistakes. See Stewart v. Motts, 654 A.2d 535, 540 (Pa. 1995). We also note that questions concerning the admissibility of evidence are within this court’s sound discretion and these rulings will not be disturbed absent an abuse of discretion. Turner v. Valley Housing Development Corp., 972 A.2d 531, 535 (Pa. Super. 2009). We will address the issues raised by plaintiff seriatim. A. Evidence Concerning Decedent’s Lack of Compliance with Medical Recommendations was Relevant to the Issues of Life Expectancy and SFP’s Alleged Failure to have a Complete Medical Record Plaintiff filed a motion in limine to exclude evidence regarding the decedent’s failure to comply with medical recommendations. In the course of the discovery process, it became clear that decedent failed to attend multiple scheduled medical appointments and at times was unwilling to reschedule these missed appointments. Plaintiff argued that the evidence was not relevant to defendants’ underlying medical care of the decedent and generated undue prejudice requiring it to be excluded. -5- NO. 07-0749 CIVIL TERM In addressing this issue, the court turns first to Pennsylvania Rule of Evidence 401, which defines relevant evidence as that evidence “having any tendency to make the existence of any fact is of any consequence to the determination of the action more probable or less probable than it would be without the evidence.” Pa.R.E. 401. Although the relevance of decedent’s noncompliance may appear minimal with respect to the underlying malpractice claim, the plaintiff’s theory in this case rested largely on the inadequacy of defendants’ compilation of the decedent’s medical history. Therefore, evidence of the decedent’s inability or refusal to attend medical appointments regularly was relevant to illustrate why decedent’s history may have been difficult for defendants to compile. Notwithstanding such relevance, plaintiff argued before and during trial that even if the evidence was relevant it should be excluded because its probative value was outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. Pa.R.E. 403. On considering this issue during its pretrial conference with the attorneys, the court determined that evidence of decedent’s noncompliance was not unfairly prejudicial. N.T. vol. I, 7-8. Additionally, the court found during the pretrial conference on the parties’ motions in limine that this evidence was relevant with respect to the issue of life expectancy. N.T. vol. I, 8. Our courts have found that in determining life expectancy, a jury should consider, among other things, the manner of living, personal habits, and individual characteristics of the decedent. Helm v. Eagle Downs – Keystone Racetrack, 561 A.2d 812 (Pa. Super. 1989), see also Pa.SSJI -6- NO. 07-0749 CIVIL TERM (civ.) Sec. 6.21. Certainly, it is relevant for a jury to consider the “individual characteristic” of a decedent who fails to comply with medical recommendations. The trial record demonstrated that decedent was unable or unwilling to follow her healthcare provider’s recommendations that she lose weight. Decedent also had symptoms of lymphoma for over a year before she sought the assistance of healthcare providers. Moreover, she was asked to return to the office for a complete physical only a few months prior to her death and yet she failed to do so. Such behavior could clearly relate to one’s life expectancy. In sum, evidence of decedent’s noncompliance with medical recommendations or regimens was relevant to not only rebut evidence that defendants failed to properly compile a history of decedent but was also relevant with respect to decedent’s life expectancy. B. Evidence Concerning Smoking and Alcohol Use by the Decedent Was Relevant to Issues Involving Life Expectancy Plaintiff sought to exclude evidence regarding decedent’s history of smoking and alcohol use. Although plaintiff’s medical records indicated a history of smoking and alcohol use, plaintiff argued that its remoteness in time to decedent’s death rendered such evidence irrelevant. Furthermore, plaintiff argued that whatever limited relevance the evidence had would be outweighed by the danger of prejudice. We noted during the pre-trial argument of this matter that the issue is not unlike that regarding decedent’s noncompliance with medical recommendations. N.T. vol. I, 15. Central to plaintiff’s allegation of malpractice is the assertion that Mr. Yarwood inadequately compiled decedent’s patient -7- NO. 07-0749 CIVIL TERM history resulting in a misdiagnosis. As such, plaintiff opened the door to broad testimony about decedent’s medical history, including her history of smoking and drinking. This issue is also relevant to life expectancy, which was addressed in Kraus v. Taylor, 710 A.2d 1142 (Pa. Super. 1998). In Kraus, plaintiff sought damages for permanent disability as a result of a motor vehicle accident. The court held that evidence of plaintiff’s alcohol and illicit drug use strongly suggested that his life expectancy would deviate from the average. Id. at 1144. More importantly, perhaps, the court in Kraus rejected plaintiff’s contention that the evidence was overly prejudicial, and held that the balancing of potential prejudice against probative value is within the sound discretion of the trial court. Id. at 1144. Plaintiff’s own expert, physician’s assistant, Mr. Carey, testified that decedent had a “complex medical history” which was encompassed by her morbid obesity, lymphoma and smoking and alcohol history. Indeed, just as the experts could not opine without this evidence the court determined that a full and fair record required its introduction. As with the issue of defendants noncompliance with medical recommendations, it was appropriate for the jury to consider evidence of decedent’s past history of smoking and alcohol use not only as variables with respect to life expectancy, but also as indicative of the complex nature of decedent’s medical history. -8- NO. 07-0749 CIVIL TERM C. References by Defendants’ expert, Dr. David Harris, Regarding Decedent’s Smoking and Alcohol Use, were within the Fair Scope of his Expert Report Plaintiff filed a motion in limine to exclude Dr. Harris from opining regarding: (1) the curability of marginal lymphoma; (2) the five year survival rate of patients with marginal lymphoma; and (3) decedent’s life expectancy. At trial, defense counsel made an offer of proof regarding Dr. Harris’ testimony regarding these issues and also regarding decedent’s history of smoking and alcohol use. (N.T. vol. 4, pg. 118, et seq.) After such reargument, the court, once again, ruled that the testimony at issue was admissible because it was relevant and within the scope of the report. N.T. vol. IV, 122. For clarity, the court notes that the doctor’s report stated “[m]y opinions are based on the information contained in the materials made available for my review and my education, training, and professional experience.” (Harris’ report at 4, Defendant Exhibit 33). We concluded that the factual basis for Dr. Harris’ opinions were based upon his review of all of the available medical records and expert depositions which he examined prior to rendering his opinion. It is important that we set forth in detail the relevant testimony from Dr. Harris regarding the history taken by physicians at the Hershey Medical Center concerning the decedent’s diagnosis of lymphoma, which follows: Q: 20 please. Specifically, with regard to this paragraph, did Dr. Ehmann obtain a social history from Mrs. Kelso? A: He did, yes. Q: What did he learn? A: Well, he found that she worked in a group home, she was an aide in a group home, that she was a smoker for more than -9- NO. 07-0749 CIVIL TERM 20 years, and she had a history in the past of drinking two quarts of alcohol a day. He also found out that she lives with her daughter, She had recently moved from Michigan. And I guess there was some question about what some of this disease had been evaluated or diagnosed or whatever in Michigan. Then I think it was his impression she was going to stay in the Harrisburg area going forward. Q: Just to be fair, doctor, when you read that, you indicated she had smoked at least one pack a day for more than 20 years, it indicates 20 years? A: Right. Q: Is that right? A: Right. Q: How long did she drink on the order of two quarts a day of alcohol? A: Well, it says here about 30 years. Q: But, again, to be fair, she hadn’t had anything to drink over the last 20 years? A: That is what the history says, yes. N.T. vol. IV, 136. Dr. Harris noted his review of the Hershey Medical Center records in his report. Having reviewed those records prior to forming his opinions, it was appropriate for Dr. Harris to briefly testify regarding decedent’s history of smoking and alcohol consumption. Again, this reference was within the fair scope of Dr. Harris’ report based on his review of the records in this case. D. The Testimony of Defense Expert, Dr. Curry, Regarding the revised Geneva Score was Permissible and Relevant to the Expert’s Opinions Regarding Causation Plaintiff filed a motion in limine to exclude references by Dr. Curry to the revised Geneva Score on the grounds of hearsay and relevancy. The revised Geneva Score is a diagnostic method used to determine a patient’s risk of PE. As to relevance, plaintiff noted that the revised Geneva Score predictive formula -10- NO. 07-0749 CIVIL TERM was established in a scholarly article in 2006, two years after decedent’s death. During the argument of this motion N.T. vol. I, 8-11, the court took great pains to ensure that Dr. Curry’s reference to the revised Geneva score would not in any way insinuate that Mr. Yarwood had used that diagnostic method. N.T. vol. I, 10. In fact, the court order clarified that the physician’s reference to the revised score was “subject to the limitation that the use of the Geneva score is limited to explaining the basis of defendants’ physician’s own opinion regarding causation and not with respect to defendant Yarwood’s use or nonuse of the Geneva Score.” Dr. Curry’s expert report states, in relevant part: No one can say with medical certainty that [decedent] did or did not have deep venous thrombosis or pulmonary embolism at her last visit on 22 June 2004. Applying the revised Geneva Score for predicting pulmonary embolism, she falls into a low probability category, making it highly unlikely. Notably, the quoted paragraph makes no reference to Mr. Yarwood or the care he should have provided. In contrast, the paragraph in which Dr. Curry addresses Mr. Yarwood’s care of decedent makes no reference to the revised Geneva Score. For clarity, the court quotes a length: The decision making by [Mr. Yarwood] during the 22 June 2004 visit is not flawed. He addresses important aspects of diagnosis by ascertaining symptoms that had chronicity (a couple weeks duration), ascertaining that important symptoms of pulmonary embolism were not present during the pleuritic chest pain, and noting vital signs that were not consistent with pulmonary embolism. Careful reading of the report indicates defendants’ physician did not base his opinion of Mr. Yarwood’s care on an application of the revised Geneva Score. -11- NO. 07-0749 CIVIL TERM Instead, the Score formed the basis of his own opinion regarding causation and is relevant in that regard. Therefore, the court permitted references to the revised Geneva Score because they were relevant, subject to the limitation that the references would explain the expert’s own opinions regarding causation and not Mr. Yarwood’s standard of care. The court disagrees with plaintiff’s contention that there could be confusion that Dr. Curry’s intention was to discuss the standard of care when discussing the Geneva Score. It was clear from Dr. Curry’s testimony that the Geneva Score was independently applied to the facts of the case as a predictive tool, regarding the probability that decedent had deep venous thrombosis at the time of Mr. Yarwood’s assessment. Similarly, the court permitted plaintiff’s expert, Dr. D’Ambrosio, to discuss the Wells Score, a rating system similar to the Geneva Score. Dr. D’Ambrosio testified that he applied the facts of the case to the Wells Score scale, and arrived at a risk diagnosis for PE. N.T. 22-24. In short, the court sought to ensure a level playing field existed for the experts on both sides to state the basis of their respective opinions. Turning to the issue of hearsay, the court notes that texts and periodicals offered at trial to establish principles or theories from their contents fall with the traditional definition of hearsay and are inadmissible unless subject to an exception under the rules. Aldridge v. Edmunds, 750 A.2d 292, 296 (Pa. 2000). However, the limited identification of these materials and in some circumstances their contents, may be referenced on direct examination to permit an expert witness to fairly explain the basis of his reasoning. Id. at 297; see also Pa.R.E. -12- NO. 07-0749 CIVIL TERM 705. Therefore, Dr. Curry was permitted to refer to the revised Geneva Score for the limited purpose of explaining the basis of his reasoning as it related to decedent’s risk level for PE. E. Dr. Curry’s Testimony Regarding the Timing of the Development of the Pulmonary Embolism was within the Fair Scope of His Report Plaintiff’s argument with respect to Dr. Curry’s testimony is substantially the same as the arguments objecting to the testimony of Dr. Harris. See Section C, supra. As noted in the previous section, Dr. Curry’s report was perfectly clear that he could not state with 100% certainty that decedent did or did not have deep vein thrombosis at the time of her evaluation by Mr. Yarwood. Therefore, plaintiff argues that Dr. Curry testified beyond the scope of his expert report when he was asked “when” the clot in decedent’s leg developed. For the following reasons we disagree. Plaintiff’s argument is based on the concept of the fair scope of an expert report. Our Superior Court has noted that it is “impossible to formulate a hard and fast rule for determining when a particular expert’s testimony exceeds the fair scope of his or her pretrial report.” Mansour v. Linganna, 787 A.2d 443, 446 (Pa. Super. 2001). Further, In determining whether an expert’s trial testimony falls within the fair scope of his pretrial report, the trial court must determine whether the report provides sufficient notice of the expert’s theory to enable the opposing party to prepare a rebuttal witness. In other words, in deciding whether an expert’s trial testimony is within the fair scope of his report, the accent is on the word “fair.” The question to be answered is whether, under the particular facts and circumstances of -13- NO. 07-0749 CIVIL TERM the case, the discrepancies between the expert’s pretrial report and his trial testimony is of a nature which would prevent the adversary from making a meaningful response, or which would mislead the adversary as to the nature of the appropriate response. Feden v. Consolidated Rail Corp., 746 A.2d 1158, 1162 (Pa. Super. 2000). In this case the defendant argued, and the court agreed, that the expert report of Dr. Curry, read as a whole, clearly put plaintiff on notice of his opinion regarding the timing of the occurrence of the deep vein thrombosis. There was never any question about decedent having a PE and, likewise, there was no dispute that blood clots are known to develop during long periods of immobility, such as decedent’s lengthy bus trip to Atlanta, Georgia. Therefore, there should have been no surprise, let alone an unfair surprise, that defendants’ expert would opine regarding the timing of the occurrence of the PE. F. The Emotional Effect of Decedent’s Obesity was Relevant and within the Purview of Dr. Harris’ Testimony At trial, defendants called Dr. David Harris, an oncology physician, to testify concerning the effects of decedent’s weight and history of lymphoma on her life expectancy. During his direct examination, Dr. Harris reviewed decedent’s records, including a questionnaire from the Weight Loss Clinic, which chronicled the effects that her weight had on her life, including its effect on her marriage, her physical activity and her self-esteem. This testimony was relevant with respect to the issue of damages, including decedent’s life expectancy, loss -14- NO. 07-0749 CIVIL TERM of consortium, and loss of life’s pleasures. In short, the court finds that it was within the fair scope of Dr. Harris’ report. G. The Court’s Minor Deviation in the Jury Instruction on Spoliation did not Prejudice Plaintiff’s Case The court used Pennsylvania Suggested Civil Jury Instruction 5.06 in its charge to the jury. The relevant portion of the charge to which plaintiff objects is as follows: Shippensburg Family Practice did not produce the problem list or the file folder for Mrs. Kelso’s medical chart. Plaintiff contends that this was done intentionally because the list and/or the file folder contained information harmful to the defendants’ case. Defendant Shippensburg Family Practice contend the problem list was blank and that there was no information on it or the folder which would require Shippensburg Family Practice to maintain them as part of Mrs. Kelso’s medical records. Shippensburg Family Practice did not contest that the items were in their control nor that the items were destroyed. They are, however, contesting that the problem list and file folder contained anything that would make them part of the medical records, and that is a factual issue for the jury to resolve. I’ll try to give you a little bit more on that. N.T. vol. V, 34. Plaintiff contends that this language constituted an inaccurate statement of the testimony and issues raised during trial regarding the missing problem list and file folder and that it is confusing given the remainder of the standard charge. To the contrary, we contend that without that explanation the charge would have been confusing as the jury would not have been able to know that it, as the fact- finder, was entitled to accept or reject SFP’s explanation regarding the records. By noting that at the outset, the court attempted to make it clear to the jury that if -15- NO. 07-0749 CIVIL TERM they found the problem list and/or file folder were part of the medical records and that they did not find SFP’s explanation satisfactory, they could draw the inference that the records would have been unfavorable to the defendants. We do not see how this in any way was clouded by the explanatory language employed by the court. The purpose of a jury charge is to clarify the legal principles at issue and will be upheld if it accurately reflects the law and is sufficient to guide the jury in its deliberations. Cruz v. Northeastern Hosp., 801 A.2d 602, 611 (Pa. Super. 2002). Although many standard charges are given verbatim, it is not unusual for a judge to explain aspects of the charge where appropriate. In the instant case, following the charge, the court took great pain to re-explain its position with respect to the language in 5.06 and its determination that SFP was not required on the verdict slip. N.T. vol. V, 56-59. The court’s concluding remarks on this sidebar discussion were as follows: I understand. As I said in chambers, I think that one interrogatory would not have been sufficient. I would have proposed two. First of all, were these items, the chart and the problem list, in fact medical documents that I think the jury would have had to decide, and if they found that they were, then were they intentionally destroyed to prevent the plaintiffs from gathering them? I did not put that in because I feel it would be confusing to the jury and is not necessary. I gave the charge as I did without that special interrogatory on the verdict slip because I believe that if the jury wants to make an inference that there was some benefit conferred it was conferred on all the defendants. If Shippensburg Family Practice destroyed anything intentionally, nefariously, that very much inured to John Yarwood’s benefit. That’s why I gave it, but your objection is so noted. N.T. vol. V, 58-59. -16- NO. 07-0749 CIVIL TERM The court takes very seriously its obligation to assist the jury in providing its important public service. Had the court failed to offer any explanation regarding suggested jury instruction 5.06, it would have been derelict in its duties. It should be noted that the court repeatedly advised the jurors that they were the finders of facts and in no way usurped that duty by offering its explanation. Likewise, the issue in this case was quite simple – was Mr. Yarwood negligent in his treatment of the decedent. It was not necessary to create confusion with the addition of special interrogatories on the relatively minor issue of spoliation. The jury had more than enough to consider without unnecessarily complicating the case or the verdict slip. H. Defense Counsel’s Mention of a Lack of Prior Claims in Closing Argument was Not Prejudicial Plaintiff requests a new trial based on comments by defense counsel during closing argument. In short, when defense counsel noted in closing that “they’ve had no claims,” which gave rise to the objection, the court cautioned the jury that it was “not to consider whether or not they’ve had any other claims.” N.T. vol. V, 11. During its charge to the jury the court gave further curative instructions stating “it is irrelevant whether Shippensburg Family Practice has been sued one time or 100 times. You are to focus on this case.” N.T. vol. V, 44. Although we believe these cautionary instructions sufficiently addressed plaintiff’s concern, we note that this issue was raised at trial by plaintiff’s counsel in the questioning of Dr. Lebow on cross-examination. Specifically, Dr. Lebow -17- NO. 07-0749 CIVIL TERM was questioned regarding reasons why the medical records (at issue in the previous section on spoliation) may be requested by attorneys: Q: And also, I understand you get requests from attorneys all the time for many reasons. Is one of the reasons though that you get record requests from attorneys is that they may be investigating a claim against the practice or provider at the practice? A: That could be, but I don’t remember any other claims. N.T. vol. III, 204 (emphasis added). Clearly the issue was raised by plaintiff to bolster its aforesaid spoliation claim. In doing so, plaintiff’s counsel elicited the statement that Dr. Lebow knew of no other claims. Thus, plaintiff cannot now object to a passing reference in defendant’s close to testimony she intentionally introduced on cross-examination. Regardless of its relevance, it was not prejudicial and was addressed immediately by the court. IV. Conclusion Plaintiff argued that the totality of all eight of its claims and the specifically egregious nature of two of them (Dr. Curry’s testimony on the pulmonary embolism developing during the bus trip and the comments of counsel in closing), require a new trial. The court disagrees. None of the issues raised by plaintiff were harmful or prejudicial to her case. Non-prejudicial claims, whether there are eight or eighty, do not become prejudicial merely because they are combined. As noted, many of the issues raised were addressed prior to trial, some of the issues were mere side issues and all of the evidence presented was relevant. The jury considered that evidence and found that the defendants were not negligent. This court did not allow any improper testimony or evidence to -18- NO. 07-0749 CIVIL TERM reach the jury, nor did it improperly instruct the jury. After five days of trial, the jury considered the evidence and found the defendants not negligent. A second trial is unnecessary. Accordingly, we enter the following order: ORDER OF COURT AND NOW, this day of December, 2010, plaintiff’s motion for IS DENIED. post-trial relief, By the Court, Albert H. Masland, J. Anthony J. Voci, Jr., Esquire For Plaintiff Lauralee B. Baker, Esquire For Defendants :saa -19- LaQUANTA KELSO, as : IN THE COURT OF COMMON PLEAS OF Administratrix of the Estate of : CUMBERLAND COUNTY, PENNSYLVANIA Yvette D. Kelso, Deceased, : PLAINTIFF : : : V. : : SHIPPENSBURG FAMILY : PRACTICE, LTD., : JOHN A. YARWOOD, PA-C : AND HOWARD M. : LEBOW, M.D., : DEFENDANTS : NO. 07-0749 CIVIL TERM IN RE: PLAINTIFF’S POST-TRIAL MOTIONS BEFORE MASLAND, J. ORDER OF COURT AND NOW, this day of December, 2010, plaintiff’s motion for IS DENIED. post-trial relief, By the Court, Albert H. Masland, J. Anthony J. Voci, Jr., Esquire For Plaintiff Lauralee B. Baker, Esquire For Defendants :saa