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Home My WebLink About2005-5869 ESTER J. LYKES, : IN THE COURT OF COMMON PLEAS OF PLAINTIFF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : JAMES A. YATES, M.D., SAUNDRA : WOLFERSBERGER, R.N., PLASTIC : SURGERY CENTER, LTD., : DEFENDANTS : 05-5869 CIVIL TERM IN RE: OPINION PURSUANT TO PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1925 Masland, J., May 30, 2012:-- Plaintiff, Ester J. Lykes appeals a jury verdict in favor of Defendant, James A. Yates, M.D. Plaintiff complains of the following matters on appeal: A. That the Trial Court (Judge Hess) harmfully erred and/or abused its discretion when it overruled plaintiff’s pre-trial motion to strike objections to the Plaintiff’s Second Set Of Request For Production Of Documents And To Compel Production During Pre- Trial Discovery, seeking charts of patients with wounds and/or wound healing problems similar to Ester Lykes on whom Defendant used gold bond powder, where the Court’s denial prejudiced Plaintiff in preparing her case for trial and ultimately during trial. B. That the Trial Court harmfully erred when it overruled Plaintiff’s Motion in Limine to Preclude Evidence, Testimony, Argument and/or Reference to Defendants’ Use of Gold Bond Powder in Patients Other than Plaintiff given that Plaintiff had been precluded from obtaining evidence of the alleged use prior [to] trial, the information was not relevant to the issues by the time of trial and/or was prejudicial to 05-5869 CIVIL TERM Plaintiff in that it impaired Plaintiff’s ability to prepare for trial or cross examine Defendant and/or his experts, Defendant repeatedly referenced his prior use of the product at trial and Defendant’s expert based his opinions regarding standard of care on Defendants’ alleged prior use of the product. C. That the Trial Court harmfully erred when it overruled Plaintiff’s Renewed Motion to Strike Objections to the Second Set of Request for Production of Documents and to Compel Production of Patient Charts in light of the Court’s ruling on the Motion in Limine to strike reference to Defendants’ use of Gold Bond powder. D. That the Trial Court harmfully erred when it overruled Plaintiff’s Motion in Limine to Preclude Evidence, Testimony, Argument and/or Reference by Defendants and/or their Experts Regarding What Caused Ms. Lykes’ Foreign Body Granulomas where the opinions were not contained in Defendants’ expert reports or otherwise raised as a defense prior to trial and the evidence was speculative and prejudicial to Plaintiff. Concise Statement, filed March 5, 2012. Facts As the matters complained of on appeal relate exclusively to the court’s pretrial rulings, an exhaustive recounting of the facts is unnecessary. Suffice to say, Plaintiff brought a medical malpractice action against Defendant, a plastic surgeon, regarding the outcome of a breast reduction surgery. Central to her claim, was the allegation that Defendant inappropriately advised her to use Gold Bond Powder to treat her post-surgical wounds. Defendant contended that the Gold Bond Powder caused her wounds to heal improperly resulting in a negative outcome from her surgery. -2- 05-5869 CIVIL TERM Discussion Pre-trial Discovery Plaintiff’s first assignment of error relates to a pretrial discovery ruling made by our esteemed colleague, President Judge Kevin A. Hess. Plaintiff demanded the production the medical charts of patients similarly situated as Plaintiff who suffered wound healing problems and who were treated with Gold Bond Powder. Defendant resisted the motion on the basis of medical confidentiality laws that protect patient privacy. Judge Hess agreed, and denied the motion. Plaintiff now argues the denial was in error. The court disagrees and concludes that it had no power to revisit Judge Hess’s decision due to the coordinate jurisdiction rule. “Generally, the coordinate jurisdiction rule commands that upon transfer of a matter between trial judges of coordinate jurisdiction, a transferee trial judge may not alter resolution of a legal question previously decided by a transferor trial judge.” Zane v. Friends Hosp., 836 A.2d 25, 29 (Pa. 2003). The rule fosters the policy of finality of pretrial decisions in the interest of maintaining judicial economy and efficiency. Id. However, departure from the rule is permitted in certain extraordinary circumstances such as when “the prior holding was clearly erroneous and would create a manifest injustice if followed.” Id. After a review of the record, and consideration of the parties’ extensive briefing of this issue, we are satisfied that no such circumstances are present here. The pretrial decision of President Judge Hess should be affirmed. -3- 05-5869 CIVIL TERM Motions in Limine Appellate review of this court’s ruling on a motion in Limine is governed by an abuse of discretion standard. Turner v. Valley Housing Development Corp., 972 A.2d 531, 535 (Pa. Super. 2009). Questions concerning the admissibility of evidence are within this court’s sound discretion and these rulings “will not be disturbed on appeal absent an abuse of discretion.” Id. Plaintiff’s next matter complained of on appeal is related to her first, in that she argues if she was unable to review Defendant’s records of other patients treated with Gold Bond, then he should be precluded from making statements in his own testimony regarding his experience with the effectiveness of that treatment. The court disagreed. First, it seemed manifestly unfair for the Plaintiff to base her entire case on the improper use of Gold Bond Powder and then prevent the Defendant from restating his deposition testimony that it “worked on every patient that has had the problem for the last 40 years.” Defendant was an eminently experienced plastic surgeon who was entitled to rebut Plaintiff’s attacks with his own experience by stating why he uses Gold Bond. The jury, then, was free to believe or disbelieve his testimony. Second, nothing prevented Plaintiff from hiring her own experts to testify about the propriety of Gold Bond Powder use in wound treatment. In fact, she did have two physicians testify on her behalf who stated they had never heard of Gold Bond Powder used in that manner. Again, the jury was free to view the Defendant’s self-serving testimony about his experience using Gold Bond -4- 05-5869 CIVIL TERM skeptically; they did not. Thus, this court did not abuse its discretion and the denial of this motion in Limine should be affirmed. Plaintiff’s next matter complained of on appeal relates to her renewed objection to President Judge Hess’s denial of the pretrial motion to compel. This court relies on the analysis above to dispose of this issue. Plaintiff’s final assignment of error relates to the court’s denial of a motion in Limine to preclude expert testimony on what caused the Plaintiff’s Foreign Body Granulomas where those opinions were not contained in the expert report. In determining whether an expert’s testimony goes beyond the scope of his report, the court must determine whether the report provides sufficient notice of the expert’s theory to enable the opposing party to prepare a rebuttal witness. Feden v. Consolidated Rail Corp., 746 A.2d 1158, 1162 (Pa. Super. 2000). Thus, [t]he question to be answered is whether, under the particular facts and circumstances of the case, the discrepancy between the expert's pre-trial 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. Chanthavong v. Tran, 682 A.2d 334, 340 (Pa. Super. 1996) (citations omitted). Here, Dr. Rupp's report concludes with the statement, "[g]ranulomas are a relatively non-specific response and in this case, it is not possible to say what their cause is." However, his entire report is on the subject of whether Gold Bond caused the granulomas and goes into some detail concluding that it did not. The question of what precisely caused the granulomas was always a well-known -5- 05-5869 CIVIL TERM issue in this case and Dr. Rupp was clearly retained for the purpose of discussing them. Thus, it seemed there would be little chance of unfair surprise that Dr. Rupp would testify on this subject. For that reason, the court denied this motion in Limine and that denial was not an abuse of discretion. Conclusion For all these reasons, the court respectfully asks our Superior Court to affirm the jury’s verdict in all respects. By the Court, Albert H. Masland, J. Peter M. Villari, Esquire Theresa L. Giannone, Esquire 8 Tower Bridge, Suite 400 161 Washington Street Conshohocken, PA 19428 For Plaintiff Leigh A.J. Ellis, Esquire Cindy N. Ellis, Esquire 4000 Market Street Camp Hill, PA 17011 For Defendants :saa -6-