Opinion
J-A27037-16 No. 574 EDA 2016
12-14-2016
MICHELLE GRACE Appellant JAY H. KAUFMAN, D.P.M.
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment Entered March 16, 2016 in the Court of Common Pleas of Lehigh County Civil Division at No(s): No. 2013-C-3626 BEFORE: PANELLA, LAZARUS, FITZGERALD, JJ. MEMORANDUM BY FITZGERALD, J.:
Former Justice specially assigned to the Superior Court.
Appellant, Michelle Grace, appeals from the judgment entered in the Lehigh County Court of Common Pleas following the denial of her motion for post-trial relief. Appellant contends the court erred when it failed to grant a new trial based upon the absence of a res ipsa loquitur jury instruction. We affirm.
We adopt the facts as set forth in the trial court's opinion. See Trial Ct. Op., 2/1/16, at 2-8. Following the close of evidence, Appellant requested that the trial court give the jury a res ipsa loquitur instruction. R.R. at 894a. The trial court denied the request. Id. at 897a. Appellant filed a motion for post-trial relief. The trial court denied the motion for a new trial on February 1, 2016. Appellant filed a notice of appeal on February 16, 2016. A praecipe to enter judgment was filed on March 16, 2016. That same day, judgment was entered in favor of Appellees and against Appellant and Pa.R.C.P. 236 notice was mailed. Appellant was not ordered to file a Pa.R.A.P. 1925(b) statement of errors complained of on appeal. The trial court's Pa.R.A.P. 1925(a) opinion incorporated the opinion attached to the February 1, 2016 order.
For the parties' convenience, we refer to the reproduced record where applicable.
Appellant's notice of appeal was premature because it was filed prior to the entry of judgment. We will deem the notice of appeal to have been timely filed from the entry of judgment. Pa.R.A.P. 905(a); Johnston the Florist , Inc. v. TEDCO Constr. Corp., 657 A.2d 511, 514 (Pa. Super. 1995).
Appellant raises the following issues for our review:
1. Did the [t]rial [c]ourt err as a matter of law or otherwise abuse its discretion by failing to instruct the jury with respect to the doctrine of res ipsa loquitur when (1) the parties agreed that [Appellant's] injuries cannot occur during surgery in the absence of negligence, and (2) [Appellant's] experts testified unequivocally that the injuries occurred during surgery?
2. Did the [t]rial [c]ourt err as a matter of law or otherwise abuse its discretion when it failed to instruct the jury with respect to the doctrine of res ipsa loquitur notwithstanding [Appellant's] satisfaction of the requisite elements of the doctrine, because the expert testifying on behalf of the defense disputed that the injury occurred as a consequence of the surgery in question?
3. Did the [t]rial [c]ourt err when it refused to grant a new trial where the charge to the jury failed to include an
instruction regarding the availability of the doctrine of res ipsa loquitur?Appellant's Brief at 4-5.
We address Appellant's issues together because they are interrelated.
Appellant argues as follows:
In this case, [Appellant] and her experts were unable to explain precisely how [Appellee] managed to injure her tendons. [Appellant] relied entirely upon circumstantial proof that [Appellee] had to have done something wrong during the surgery because there was no other explanation for the injuries. This factual scenario represents the classic setting for the invocation of res ipsa loquitur.Appellant's Brief at 28. Appellant contends that the fact that Appellee introduced "contrary evidence" does not defeat Appellant's entitlement to a res ipsa loquitur instruction. Id. at 32. Appellant concludes that she is entitled to a new trial based upon the trial court's "failure to give such an instruction." Id. at 40. We find no relief is due.
"When presented with an appeal from the denial of a motion for a new trial, absent a clear abuse of discretion by the trial court, appellate courts must not interfere with the trial court's authority to grant or deny a new trial." MacNutt v. Temple Univ. Hosp., Inc., 932 A.2d 980, 984-85 (Pa. Super. 2007) (en banc) (quotation marks and citation omitted). "We will grant a new trial based on error in the court's charge if, upon considering all the evidence of record we determine that the jury was probably misled by the court's instructions or that an omission from the charge amounted to fundamental error." Angelo v. Diamontoni , 871 A.2d 1276, 1279 (Pa. Super. 2005) (quotation marks and citation omitted).
Res ipsa loquitur allows juries to infer negligence from the circumstances surrounding the injury. Res ipsa loquitur, meaning literally "the thing speaks for itself," is "a shorthand expression for circumstantial proof of negligence-a rule of evidence." Gilbert v. Korvette , Inc., [ ] 327 A.2d 94, 99 ([Pa.] 1974). It is a rule that provides that a plaintiff may satisfy his burden of producing evidence of a defendant's negligence by proving that he has been injured by a casualty of a sort that normally would not have occurred in the absence of the defendant's negligence.Quinby v. Plumsteadville Family Practice , Inc., 907 A.2d 1061, 1071 (Pa. 2006).
Section 328D of the Restatement (Second) of Torts sets forth the following elements necessary to raise the inference of negligence:
(1) It may be inferred that harm suffered by the plaintiff is caused by negligence of the defendant when
(a) the event is of a kind which ordinarily does not occur in the absence of negligence;
(b) other responsible causes, including the conduct of the plaintiff and third persons, are sufficiently eliminated by the evidence; and
(c) the indicated negligence is within the scope of the defendant's duty to the plaintiff.
Rest. (Second) Torts § 328D(1)-(3).
(2) It is the function of the court to determine whether the inference may reasonably be drawn by the jury, or whether it must necessarily be drawn.
(3) It is the function of the jury to determine whether the inference is to be drawn in any case where different conclusions may reasonably be reached.
Before a plaintiff can invoke the doctrine of res ipsa loquitur , all three of the elements of Section 328D(1) must be established; only then does the injurious event give rise to an inference of negligence. After all three elements have been established, if reasonable persons may reach different conclusion[s] regarding the negligence of the defendant, then it is for the jury to determine if the inference of negligence should be drawn. Significantly, if there is any other cause to which with equal fairness the injury may be attributed (and a jury will not be permitted to guess which condition caused the injury), an inference of negligence will not be permitted to be drawn against defendant.MacNutt , 932 A.2d at 987 (quotation marks and citations omitted and emphasis added).
In MacNutt , the Court found "[t]he [experts'] difference of opinion on the nature of [the a]ppellant's injury as well as the competent evidence of another possible cause for the injury . . . created a factual dispute regarding whether [the a]ppellant's injury was outside the scope of [the a]ppellees' duty to Appellant." Id. at 991. Therefore, in that case this Court concluded that the appellant was not entitled to a res ipsa loquitur jury instruction. Id.
Instantly, the trial court opined:
In this case, like MacNutt , an issue of fact regarding the nature of [Appellant's] injury as well as where/when the event actually took place was in dispute: was the injury severed tendons or spontaneously ruptured tendons; did the injury take place during the October 11, 2011, surgery or several weeks after surgery?
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[W]e find [Appellant] did not provide sufficient evidence to support the conclusion that the negligence of [Appellee] more likely than not caused [her] injuries. We find in this instance that the probabilities of negligence or its absence were evenly divided, at best. Accordingly, [Appellant] failed to meet the first element required for the doctrine of res ipsa loquitur.Trial Ct. Op. at 14, 16, 18.
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Because we find no error was made in determining that the res ipsa loquitur instruction was not applicable in this case, we conclude [Appellant] is not entitled to a new trial based on that claim.
At trial, Appellant's expert, Dr. Howard S. Shapiro, testified to the following:
[Appellant's Counsel]: What are the tendons that run through the bottom of the foot?
A: So you have the flexors—the flexor tendons. You have the flexor halluces longus. The flexor digitorum longus.
Q: And so you've got the extensor tendons that bring the toes up you said. So what do the—the tendons that run on the bottom of the foot, what do they do?
A: They're going to bring the toes down.
Q: . . . The surgery in this case was called an arthroscopy with an ankle stabilization, this Bronstrom procedure.
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Q: [W]hat is the purpose of the arthroscopy?
A: The arthroscopy is to clean out the joint. Whether it's arthritic—for arthritic purposes.
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Q: [E]xplain to the members of the jury exactly how this procedure is done?R.R. at 586a-588a.
A: So it's done with very minimal incision—type surgery. You make a very small, little incision along the kind of front and inside portion of the ankle. And then from that point, you're inserting a camera into the joint capsule, into the joint. And kind of visualizing the joint under kind of like a microscope. So it kind of blows it up for you so you can see it very well.
And then you make another little portal, which is probably about a half a centimeter along the front but outside portion of the ankle. And that's where you're going to insert your tools for cleaning the ankle. And then basically everything is done through this minimal incision. So you're making very—two very small holes, and you're able to gain access to the ankle to clean it out thoroughly.
Q: So in this case, the holes—the two holes that are made in the ankle, are they—whereabouts are they? On the front of the ankle? . . .
A: Yeah, so they're on the front. But they're placed so they're away from any type of, I guess, important neurovascular tendons and structures.
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Q: [W]hat was the other procedure that he did?
A: The Brostrom.
Q: . . . Can you explain to the jury, first of all, why he was doing that procedure?
A: [Appellant] was diagnosed . . . with ankle instability. . . . So the purpose of the surgery was to repair the ligament to stabilize the ankle.
Q: . . . Tell the members of the jury what a ligament is?
A: A ligament is a thick bank of fibrous tissue or collagen that connects bone to bone.
Dr. Shapiro testified that based upon Appellee's office notes of August 19, 2011 and the MRI, Appellant's extensor halluces longus ("EHL") and extensor digitorum longus ("EDL") were normal prior to surgery. Id. at 589a. Appellee's note of November 2, 2011, stated that there was no cellulitis or dehiscence. Id. at 591a.
Q: [W]hat does it mean to have no cellulitis or dehiscence?Id.
A: There's no redness of the foot. Cellulitis is basically the skin or soft tissue infection. You would usually represent that by, you know, redness, warmth of the foot. And then as far as the—
Q: Dehiscence?
A: So there's no dehiscence. It means that the wounds that were created surgically are healing well and are together.
Q: Then he says here weakness of extensors noted to lesser toes and able to dorsiflex foot. First of all, weakness of extensors, is that significant to you?
A: Yes.
Q: And what's the significance of that to you?
A: That there's an issue going on. That she should be able to move her toes. I can't see any reason why they would be weak.
Appellee's office notes from Appellant's November 7th visit indicated "weakness of extensors appreciated to lesser toes, able to dorsiflex foot. Ankle appears stable clinically." Id. Dr. Shapiro offered his opinion in the following exchange.
Q: . . . Why was she having weakness of her extension in her toes on November 2nd, November 7th, November 9th, and so on?
A: She had damage to her tendons from surgery.
Q: Is that your opinion to a reasonable degree of medical certainty?
A: Absolutely.
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Q: . . . So tell the members of the jury what this MRI of January 2012 showed?
A: So it showed that there was a—a transection or a gapping between the tendon—the EHL tendon and the EDL tendon . . . . That they were separated or cut.
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Q: Do you have an opinion to a reasonable degree of medical certainty as to when and how those tendons were injured?
A: Sure. At the time of surgery during the arthroscopy procedure.
Q: . . . There was some talk . . . that these two tendons just spontaneously ruptured. Can you tell the jury whether in your opinion to a reasonable degree of medical certainty there is any—any scientific or medical basis for such a contention?
A: Zero. These tendons do not spontaneously rupture.
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Q: Now, other than [the] surgery [performed by Appellee], is there anything else that reasonably explains this injury?Id. at 592a-593a.
A: No, there's not.
Appellee's expert, Dr. Allen Mark Jacobs, testified to the following:
I went back and looked at the two MRI's that were done after surgery. There was one that was done that [Appellee] ordered on January 28th. And there was one that Dr. Ruht ordered February 1st[.] And there's no evidence, whatsoever, at all of any injury. This is the MRI's. They show zero damage of any of those structures. It doesn't show any damage to that ankle joint. It doesn't show any damage to the soft tissues. It shows two ruptured tendons which were thickened and had increased signal in them because they had a condition called tendinosis.
. . . [I]t came down to one thing. The MRI's. We got pictures of her ankle after surgery and they show absolutely no evidence. None. None. That that arthroscopic shaver ever left that joint. None. Because it would have left a track. The MRI was done 90 days after that injury; and you're not going to heal perfectly in 90 days. But if you have so much damage that you slice through the ankle, slice through a nerve, artery and two veins, slice through two tendons. And the two tendons are apart. So [Appellee] would have had to also have done it in two separate areas, all the time keeping the arthroscopic shaver perfectly aligned. . . . And I say it's impossible.
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What we do have on the MRI is tendinosis. So we do know her tendons were diseased and predisposed to rupture. That we do know. And I think you're going to find, as you go through this, the evidence clearly shows that's what happened here.
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Q: Doctor, as far as the tendinosis is concerned, can that lead to a spontaneous rupture?R.R. at 696a-697a, 705a-706a.
A: It is probably the most common cause of spontaneous rupture that we see and that I treat.
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Q: Doctor, do you have an opinion as to whether [Appellee] was negligent in the performance of the arthroscopic procedure on October the 11th, 2011?
A: . . . I have no reason or no basis for me to think that he was in any way negligent.
Q: Do you hold that opinion to a reasonable degree of medical certainty?
A: Yes.
Dr. Gregory Schwartzman testified that he has expertise in the radiology of orthopedics. R.R. at 902a. He reviewed MRI studies from June 28, 2010, January 20, 2012, and February 1, 2012. Id.
[Appellee's Counsel]: [D]id you formulate an opinion with regard to whether [Appellee] during his operation of October 11th, 2011, cut those tendons of the EHL and the EDL? Did you formulate an opinion in that regard?Id.
A: Yes, I did.
Q: [W]hat is your opinion?
A: That he did not cut those tendons.
Q: And do you hold that opinion to a reasonable degree of medical certainty?
A: Yes, I do.
Dr. Schwartzman, Appellee's expert, testified as follows regarding the January 20, 2012 MRI:
Q: . . . And how do they appear to you with your expertise in radiology, those tendons?
A:[T]here's tendon disease here.
Q: . . . And tendon disease is known as what?
A: There's a lot of words for it. Tendinopathy. Tendinosis.
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Tendinosis is an abnormal tendon. When a tendon gets diseased, there's not many things that a tendon can do. So a tendon starts out as a dark cord. And as it gets diseased, what happens on the MRI is it thickens and gets brighter. It sort of degenerates internally. And different tissues come in and sort of degenerate it over time. Then you can go on to partial tearing. Then you can go up to full thickness tearing.
Q: . . . Is tendinosis a precursor to any problem with a tendon?
A: Yes, that's how a tendon develops its problems. It becomes tendonotic before it goes on to rupture.
Q: Goes on to rupture?
A: Yes.
Q: . . . And is it a—can this process that we're talking about, going on to rupture, can it happen all of a sudden or is it a process that takes place in your experience?
A: It's a process that takes place. A tendon needs to be diseased in order for it to rupture. And it can happen in a
short period of time; it can happen over a long period of time.
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Q: [W]ith regard to the metal debris issue, did you find it in other parts of the body—other parts of the foot and ankle in your review of the MRI of January 20, 2012?
A: . . . It's also in the joint space.
Q: . . . Why don't you bring up those images and show the jury where you found the metal debris.
A: [T]he fluid in the joint is bright and the fat is dark. . . . And as you come down here, this is the tibia and the fibula. So this is the lateral or outside part of the ankle. Here are those little dark spots that we talked about that are outside from the open procedure.
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So it's in the joint space and it's external to the joint space, because there were two different procedures performed.
Q: [D]id you find any metallic debris in the area where the EHL and EDL were located?
A: Absolutely not.
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Here's the area of the tendon rupture and you see fluid there. There are no dark spots. No dark spots in there at all in the area of the tendon rupture.
Q: [W]hat do you see there where the tendons were, there's like a whitish area[?]
A: That's what we call a granulation tissue. So after there's been an injury, the body's sort of a reparative mechanism, how the body starts to repair itself. Normally it goes from granulation tissue to scar tissue.
Q: Now, is this something you'd see after a rupture of a tendon?
A: Yes.
Q: Now, would you still see metal found in there without all of that edema?
A: If there was surgery in this location, you would see the metallic artifact. You don't see any, which means there was—there's no surgery in this area.
Q: . . . So based solely upon the metal debris issue, where do you find it? Where don't you find it, and what conclusions have you reached because of that?
A: I find it where there was surgery performed. So during the arthroscopy portion of the study where the surgeon's in the joint, you're going to get this metallic debris which I showed. Where there was ligament repair along the outer portion of the ankle, you're going to see it there. But where the alleged laceration was of these tendons, there's no micro metallic debris there. So there was no laceration of these tendons. These tendons ruptured.
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Q: [D]o you have an opinion to a reasonable degree of medical certainty as to whether [Appellee] lacerated the tendons when he did his operation in 2011?
A. There was no way he lacerated those tendons during the surgery.
Q: How can you be so confident?
A: I interpret MRI's all the time. Everything points to a rupture after the surgery.
Q: . . . And the edema that was noted on the one study of the—for January 20, 2012, the presence of the edema, as far as timing is concerned, what can you tell the jury as to the what your thoughts are in that regard?
A: That the spontaneous rupture happened three—two, three, four weeks prior to the MRI. The 2012 MRI.Id. at 905a-906a, 908a-909a, 911a.
Q: Doctor, do you hold all of these opinions . . . to a reasonable degree of medical certainty?
A: I do.
In the case sub judice, Appellant's expert, Dr. Shapiro, opined that the tendons were damaged during the arthroscopic surgical procedure. Appellee's experts, Dr. Jacobs and Dr. Schwartzman disagreed, finding that the tendons spontaneously ruptured following surgery. The experts difference of opinion created a factual dispute. See MacNutt , 932 A.2d at 991. Because all three elements of Section 328(D)(1) have not been established, Appellant was not entitled to a res ipsa loquitur instruction. Id. at 992. We discern no abuse of discretion or error of law by the trial court. Id. at 984-85. Therefore, Appellant is not entitled to a new trial. See Angelo , 871 A.2d at 1279. Accordingly, we affirm the order denying Appellant's motion for post-trial relief.
Order affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 12/14/2016
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