2025 Pa. Super. 191
Pa. Super. Ct.2025Background:
- In April 2021 Ronald Lewis underwent open vascular surgery performed by Dr. Luo; postoperatively he developed signs of limb ischemia and within three weeks his left foot became gangrenous and was amputated.
- Lewis sued Reading Hospital, Dr. Luo, and Tower Health Medical Group for negligent postoperative care (failure/delay to provide anticoagulation and treatment), seeking damages; jury awarded $869,000.
- Defendants disclosed vascular expert Herrick Wun, M.D.; pretrial orders compelled citation of supporting studies, Wun’s reports failed to identify those studies, and the trial court ultimately precluded him from offering expert opinions (record later showed a supplemental report relying only on experience).
- In opening statement plaintiff’s counsel told the jury (incorrectly) that defendants could not find a single vascular surgeon to support their position; defense moved for mistrial, court gave a general cautionary instruction but denied mistrial.
- Plaintiff’s vascular expert Timothy Wu, M.D., testified for Lewis and disclosed he had previously been retained by Reading Hospital in an unrelated matter; defense objected but the court admitted the testimony.
- On appeal the Superior Court vacated the judgment and remanded for a new trial, concluding the opening-statement remark and the trial court’s causation instruction/verdict form were prejudicial and erroneous.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Exclusion of defendants’ vascular expert (Wun) | Lewis: exclusion proper for failure to disclose bases for expert opinions | Defendants: Wun later clarified reliance on his training/experience; exclusion was erroneous and prejudicial | Superior Court: record insufficient to meaningfully review exclusion; no reversal on this ground (no relief granted on this issue) |
| 2. Mistrial after opening remark that defendants had no vascular expert | Lewis: remark was harmless and cured by court’s cautionary instruction | Defendants: comment falsely implied defendants had no expert and was highly prejudicial; warranted mistrial | Held: remark was materially false and prejudicial (analogous to Siegal); curative instruction inadequate; new trial required |
| 3. Allowing plaintiff’s expert to reveal prior retention by Reading Hospital | Lewis: relevant to qualifications and lack of bias | Defendants: irrelevant and potentially confusing/prejudicial | Held: admission proper and within trial court’s discretion; evidence relevant to qualifications and bias; no abuse of discretion |
| 4. Jury instruction and verdict form equating factual cause with "increased risk of harm" | Lewis: any error harmless under general-verdict rule; instruction reflected accepted "increased-risk" doctrine | Defendants: instruction lowered plaintiff’s burden by equating increased risk with factual/proximate cause; objected and submitted alternative language | Held: court erred—instruction and verdict form improperly equated increased risk with factual cause, easing plaintiff’s burden; preserved on appeal; new trial required |
Key Cases Cited
- Siegal v. Stefanyszyn, 718 A.2d 1274 (Pa. Super. 1998) (trial court’s exclusion of expert and opposing counsel’s related remark so prejudicial that curative instruction was inadequate; new trial required)
- Poust v. Hylton, 940 A.2d 380 (Pa. Super. 2007) (misconduct by counsel warrants new trial when it prevents fair weighing of evidence)
- Steltz v. Meyers, 265 A.3d 335 (Pa. 2021) (distinguishes permissible comment on absence of evidence from comments that exploit a court exclusion)
- Mitzelfelt v. Kamrin, 584 A.2d 888 (Pa. 1990) (explains "increased risk" instruction and that jury must still find the defendant’s conduct was a substantial factor in causing harm)
- Toogood v. Owen J. Rogal, 824 A.2d 1140 (Pa. 2003) (expert proof of causation is required in malpractice cases to avoid speculation)
- Winschel v. Jain, 925 A.2d 782 (Pa. Super. 2007) (discusses two-step causation analysis: increased risk evidence then jury finding that it was a substantial factor)
- Tincher v. Omega Flex, Inc., 104 A.3d 328 (Pa. 2014) (standard for reviewing jury instructions and when relief is warranted)
- Jones v. Ott, 191 A.3d 782 (Pa. 2018) (procedures for preserving charge objections and post-trial review)
- Halper v. Jewish Family & Children’s Serv., 963 A.2d 1282 (Pa. 2009) (general-verdict rule explained and limits on its application)
- Cowher v. Kodali, 283 A.3d 794 (Pa. 2022) (application of general-verdict rule in malpractice context)
- Hamil v. Bashline, 392 A.2d 1280 (Pa. 1978) (discusses "substantial factor" causation standard)
- Sutherland v. Monongahela Valley Hosp., 856 A.2d 55 (Pa. Super. 2004) (explains that increased-risk evidence can provide a basis for the fact-finder to find factual cause)