Yamialkowski, K. v. Berry, K.
2280 EDA 2015
| Pa. Super. Ct. | Jan 24, 2017Background
- On Sept. 17, 2012, Karen Yamialkowski presented to Wayne Memorial Hospital ER with migraine, chest pain, dizziness and nausea; Dr. Kenneth Berry treated her and ordered MRI and Phenergan (which carries a boxed warning preferring IM use). Symptoms resolved but she returned two days later with swelling and pain in the left arm/hand.
- Plaintiffs (Karen and Robert Yamialkowski) sued for medical malpractice alleging Phenergan was improperly administered IV in the left arm causing Complex Regional Pain Syndrome and related injuries.
- At deposition in June 2014 Dr. Berry said he did not recall treating Ms. Yamialkowski; at trial he testified he did recall aspects of the visit, explaining his memory was refreshed after confusing her with another patient.
- The jury returned a verdict for defendants on May 22, 2015. Plaintiffs moved for JNOV or new trial; the trial court denied relief and entered judgment for defendants; this appeal followed.
- Plaintiffs raised four issues on appeal: (1) failure to supplement discovery after Dr. Berry’s changed recollection; (2) judicial bias via courtroom remarks; (3) juror nondisclosure regarding a juror’s husband’s relationship with the hospital; and (4) verdict against the weight of the evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Failure to supplement under Pa.R.C.P. 4007.4(2)(b) after Dr. Berry’s changed recollection | Dr. Berry’s later trial testimony that he recalled treatment should have been supplemented; failure prejudiced plaintiffs by ambush | A refreshed or changed recollection is not "obtained information" triggering the supplementation duty; credibility issue for jury | Court: No duty to supplement; issue of credibility for jury; no relief granted |
| 2. Trial court bias via admonishments toward plaintiffs' counsel | Court’s comments that cross-examination was lengthy and wasteful signaled bias and prejudiced jury against plaintiffs | Comments were not objected to contemporaneously; court later gave curative instruction; no bias shown | Waived for lack of timely objection; no reversible bias; claim denied |
| 3. Juror nondisclosure (Juror No.11’s husband’s ties to hospital) | Post-trial discovery showed juror’s husband worked closely with county/hospital finances and should have been struck for cause or peremptively | Plaintiffs failed to object during jury selection or request a post-trial hearing; no evidence of intentional concealment | Waived for failure to timely object; no hearing requested below; claim denied |
| 4. Verdict against the weight of the evidence | Evidence (including expert testimony) established defendants negligently administered Phenergan; verdict disregards uncontested negligence | Conflicting expert testimony on standard of care; credibility and weight for jury to resolve | Trial court did not abuse discretion; conflicting evidence supported verdict; no new trial or JNOV |
Key Cases Cited
- Gurley v. Janssen Pharm., 113 A.3d 283 (Pa. Super. 2015) (standard and review for new trial/JNOV and two-part analysis)
- Dubose v. Quinlan, 125 A.3d 1231 (Pa. Super. 2015) (credibility determinations are for the jury)
- Leahy v. McClain, 732 A.2d 619 (Pa. Super. 1999) (failure to supplement discovery when new materials come into possession may justify exclusion)
- Rancosky v. Washington Nat. Ins. Co., 130 A.3d 79 (Pa. Super. 2015) (contemporaneous objection required to preserve trial error)
- Hatwood v. Hosp. of the Univ. of Pennsylvania, 55 A.3d 1229 (Pa. Super. 2012) (weight-of-the-evidence review limited; trial court discretion afforded primacy)