Carlitz, J. v. Delta Medix, P.C., Carlitz, J. v. Delta Medix, P.C. No. 1370 MDA 2015

Background

Mrs. Jacqueline Carlitz fell while transferring from her wheelchair onto an exam table during a urology visit; she sustained serious orthopedic injuries (open ankle fracture).
Plaintiffs sued Delta Medix and ultrasound tech Jeffrey Guse for medical negligence; defense expert Dr. Jack Henzes submitted an August 19, 2014 report attributing injury severity to osteoporosis but stating the patient “lost her balance and fell.”
Six days before trial Henzes provided an untimely supplemental report (April 20, 2015) advancing a new “spontaneous fracture” theory: osteoporosis caused an ankle fracture which then caused the fall.
Plaintiffs moved in limine to exclude the supplemental report; the trial court granted the motion on April 27, 2015 and directed the defense to stick to the first report’s four corners.
At trial defense counsel and Dr. Henzes nevertheless made several references to the spontaneous-fracture theory during opening, direct, and redirect; the court gave curative instructions but denied mistrial during trial.
Jury returned a defense verdict finding Guse nonnegligent; plaintiffs obtained a post-trial new-trial order based on the trial-court’s finding that the excluded theory was injected into the trial and was highly prejudicial. This appeal concerns that new-trial decision.

Issues

Issue	Plaintiff's Argument (Carlitz)	Defendant's Argument (Guse)	Held
1) Did defense violation of the pretrial exclusion of the supplemental report justify a new trial?	Defense repeatedly and recklessly introduced the excluded spontaneous-fracture theory; prejudice was incurable and warrants a new trial.	The court’s order was ambiguous or not violated; any references were within the fair scope of the original report or cured by instructions.	Court found violations on three occasions, characterized defense conduct as reckless, and affirmed new trial as not an abuse of discretion.
2) Was the April 27, 2015 limine order an abuse of discretion?	N/A (plaintiffs sought and relied on the order).	Order improperly precluded theory that was arguably within the first report’s scope.	Appellate court declined to find the order an abuse of discretion given ambiguity and preserved review focusing on whether the order was violated.
3) Did plaintiffs waive objections by not objecting immediately to opening remarks?	Objection was timely—customary to wait until after openings; court had recorded openings and prompt sidebar followed.	Objection was untimely under the contemporaneous-objection rule and therefore waived.	Court held objection timely (analogous to Mirabel/Adkins), so waiver did not apply.
4) If violation occurred, was error harmless because jury found no negligence (didn't reach causation)?	The spontaneous-fracture theory affected liability and credibility; intertwined with negligence, so prejudice could have affected verdict.	Any error was harmless because jury found no breach of standard of care, so causation evidence couldn't have affected outcome.	Court rejected harmless-error claim: excluded theory bore on liability and witness credibility; curative instructions were insufficient; new trial affirmed.

Key Cases Cited

Martin v. Evans, 711 A.2d 458 (Pa. 1998) (trial court discretion to grant/deny new trial)
Morrison v. Commonwealth Dept. of Public Welfare, 646 A.2d 565 (Pa. 1994) (scope of appellate review of new-trial orders)
Coker v. S.M. Flickinger Co., Inc., 625 A.2d 1181 (Pa. 1993) (abuse-of-discretion standard for new-trial decisions)
Harman ex rel. Harman v. Borah, 756 A.2d 1116 (Pa. 2000) (two-step Harman framework for reviewing new-trial grants)
Williams v. McClain, 520 A.2d 1374 (Pa. 1987) (inadmissible evidence bearing on causation can prejudice liability findings)
Boyle v. Independent Lift Truck, Inc., 6 A.3d 492 (Pa. 2010) (new trial warranted when errors may have affected verdict)
Boscia v. Massaro, 529 A.2d 504 (Pa.Super. 1987) (curative instruction may be insufficient when inadmissible testimony is highly prejudicial)
Adkins, 364 A.2d 287 (Pa. 1976) (contemporaneous-objection rule analysis; recorded argument may justify delayed objection)
Mirabel v. Morales, 57 A.3d 144 (Pa.Super. 2012) (permitting timely post-opening objection where circumstances support it)
Mecca v. Lukasik, 530 A.2d 1334 (Pa.Super. 1987) (delayed objection to opening can be untimely where argument unrecorded)
Fretts v. Pavetti, 422 A.2d 881 (Pa.Super. 1980) (unrecorded argument supports strict contemporaneous-objection enforcement)