Case Information

NON-PRECEDENTIAL DECISION SEE SUPERIOR COURT I.O.P. 65.37 STACEY CARLITZ, EXECUTRIX OF THE IN THE SUPERIOR COURT OF ESTATE OF JACQUELINE D. CARLITZ, PENNSYLVANIA DECEASED AND ALAN S. CARLITZ

v.

DELTA MEDIX, P.C. AND JEFFREY W.

GUSE No. MDA 2015 APPEAL OF: JEFFREY W. GUSE Appeal from the Order Entered July 15, 2015 In the Court of Common Pleas of Lackawanna County Civil Division at No(s): 11 -CV BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E. STEVENS, P.J.E.* FILED APRIL 04, 2017

DISSENTING MEMORANDUM BY BENDER, P.J.E.: disagree two of the Majority's conclusions matter: 1) Henzes' First Report not mention, otherwise suggest, 'spontaneous fracture' theory; and 2) "it should have been obvious they were to avoid any mention of the spontaneous Report." Majority Memorandum at 39. Because I believe these conclusions were crucial to Majority's decision to affirm the order granting plaintiffs, based upon defendants' purported violations of the Court Order granting the motion limine, respectfully dissent. consequence of the Court Order the preclusion any new theories not contained First Report. This much dispute. With little analysis, however, the Majority concludes that "the spontaneous *Former Justice specially assigned the Superior Court.

fracture theory of causation was absent from the First Report." Id. at 37- To contrary, believe the First Report alluded to, at least ambiguous, regarding a spontaneous fracture causation theory. To clear, the two causation theories question are that: 1) Mrs. Carlitz fell after losing her balance while pivoting on her ankle, and she subsequently broke her ankle during the fall (non -spontaneous fracture theory); and 2) Mrs. Carlitz's ankle broke when pivoted on it, causing her to fall (spontaneous fracture theory).

The Majority concedes First Report "referred mechanism of Mrs. Carlitz's injury being due to osteoporotic state of her bones." Id. 38. The Majority goes state First Report only described non -spontaneous fracture theory, that a spontaneous a "completely theory causation." (emphasis added). However, if the mechanism of Mrs. Carlitz's injury osteoporotic state of her bones, how congruent with a spontaneous fracture theory? Does it not, fact, implicitly suggest spontaneous fracture theory? Is there a fundamental difference between the "cause" "mechanism" injury case? Is it merely the difference between a general specific cause?' Majority does not answer these critical questions. To illustrate this difference, doctor might describe the mechanism of

injury resulting fall 'blunt force trauma.' Such fall result (Footnote Continued Next Page)

In my view, the First Report describes a general cause osteoporotic state of Mrs. Carlitz's ankle caused fracture it to in circumstances when healthy bone would not. That Dr. only went describe the non -spontaneous fracture theory does not mean his description of the mechanism of her injury not also encompass a spontaneous fracture theory. Henzes was not an eyewitness Mrs. Carlitz's injury. He not know the specific cause it, he could only speak to the general mechanism of that injury, any suggestion of specific causes were, therefore, merely hypotheticals. Accordingly, I reject Majority's conclusion First Report not, at least to some degree, suggest spontaneous fracture theory, because it appears to me inherently encompassed within description of the mechanism injury.

Second, not believe the court effectively or sufficiently conveyed to specifically precluded the court's granting of motion limine. As Majority acknowledges, at the time issued (Footnote Continued) If our doctor's expert report an accident, foul play, or suicide.

suggested either accident foul play examples of potential specific causes of the blunt force trauma observed, but he fails suggest suicide report, would mention of suicide subsequent a completely new causation theory? not, because the difference difference kind (all are subsumed the general cause, blunt force trauma).

Court Order, "it appears the trial was more concerned with the untimeliness of Second Report[,]" than with whether the defendants could raise the spontaneous fracture theory through Henzes' testimony. Majority Memorandum at Indeed, while the trial court clearly ruled that not reference the language contained in Second Report, it provided virtually no guidance of the practical ramifications that decision, such whether actually contained within four corners of First Report. The court's omission and/or oversight this regard occurred despite the specific, contemporaneous arguments the parties regarding issue at the time the motion limine litigated. trial court agree with plaintiffs that if Second Report presented new theory of causation, new theory would also precluded under the Court Order. However, it is obvious court's accompanying statement trial court had determined Report had, fact, presented theory of causation. Instead, court stated:

They have their theory what initial report means you have yours. And if, fact, supplemental clarification, then it's not adding anything new, go with the original report. So, the motion limine April 21st is granted. Okay? I don't necessarily think has anything do don't necessarily going conclude it. you guys conclude. But nevertheless, thought we needed address it because it outstanding. N.T., 4/27/15, 33-34. the trial court not advise the defendants that

Clearly, spontaneous fracture theory was precluded, relatedly decide the Report merely an elaboration on the theory presented First Report. Yet, the court clearly aware of dispute between the parties, the court's language, quoted supra, even suggests to me the court's inexplicable intention to leave the for the jury resolve, impression ultimately justified the court's later discussion of the issue.

When addressed objection defendant Guse's counsel's opening statement, of the purported violations of the Court Order, the court again appears to have sidestepped the essence of matter. In response objection, the court stated:

Well, I'm going to deny the motion for two reasons. I have already told the what the lawyers say cannot equated as evidence, so your argument isn't evidence, [] I told the jury they can't decide case based upon anything say or the lawyers say, but they are to decide based on would make certain you handle very evidence. carefully, however, when you bring Henzes.

N.T., 4/28/15, 60.

Thus, trial court yet again failed to resolve the dispute at its second opportunity do so. Indeed, the court's continued ambiguity could reasonably interpreted, given its prior statement matter, having suggested to still potentially admissible if they demonstrated the jury it emanated from First Report.

Given record it stood when plaintiffs objected to Guse's counsel's opening statement, simply cannot conclude that Guse's counsel violated the Court Order that time. Indeed, by first suggesting that it a matter for jury, then failing to explicitly instruct the defendants that excluded response to this objection, the court essentially invited the defendants to continue press issue.

The court also determined that the Court Order violated by defense during the direct examination Dr. Henzes. Immediately prior Dr. Henzes' testimony, Guse's counsel asked trial court clarify what Henzes was permitted to say in light of the court's precluding the admission of the Second Report. N.T., 4/29/15, 48. The court responded testify whatever within "fair scope his report[,]" then asked, "[w]hy problem?" Counsel responded: "I don't think it's problem, think it's clear he said, but I [Plaintiff's counsel], you know, has said it's something different." Id.

Clearly, Guse's counsel was indicating court had not been its prior ruling regarding Report specific enough actually contained wholly separate theory of causation not present responded: "Let me more specific, First Report. phraseology used describing ... how wound might have occurred has phraseology [first] his - second report." Id. at 49. This was only marginally more specific than the prior instructions the court, and still not resolve the lingering question.

Subsequently, during direct examination, Dr. Henzes was asked: "[C]an you please tell the what your opinion as the causation Id. at 58. Dr. Henzes responded, "That her issues this matter?" osteoporosis led her to having low level trauma causing her to break her Id. at 58-59. ankle." No objection made to testimony. Subsequently, Dr. Henzes was asked, "And what's your understanding as interaction between Mr. Guse and Jacqueline Carlitz and Alan Carlitz once they arrived Delta Medix?" Id. at then stated:

Well, Mr. Guse was the ultrasound tech. [Ms. Carlitz] was brought to Delta Medix. And she brought van. She wheelchair. And the wheelchair, Mr. Carlitz, believe, pushed the wheelchair into the building. And Mr. Guse took over and took her right into exam room. He asked her if she get out of the wheelchair to get up on the exam table. She said she could. She was able to get herself out of the chair. With help Mr. Guse and Mr. Carlitz, she got up on step she needed to get onto get onto the exam table. And then, as she was pivoting herself around, she either-one of two things either happened. Either she lost her balance and fell broke her ankle. Or she was pivoting, the pivot maneuver would have broken her ankle then would have collapsed fallen onto the floor.

Id. At this point, the plaintiffs' counsel objected.

A discussion then held at sidebar, where the counsel complained mention the pivoting 61. cause of the broken ankle (the spontaneous fracture theory). Id. Guse's counsel responded that report mention pivoting. However, although the plaintiffs' counsel agreed that first report indicated that Ms. Carlitz had pivoted her ankle, argued the report had stated that she had "[p]ivot[ed] and attempt[ed] to do it, but [the first not] list that cause. And he's talking about causation here. The cause that it states here [in the first report] that lost her balance fell." Id.

A protracted discussion ensued, during which the court appeared carefully consider, for time, whether Henzes' initial report actually referenced the spontaneous fracture theory, only suggested that osteoporosis had contributed Ms. Carlitz's injury after she lost her balance fell, the non -spontaneous fracture theory. Id. at 61- In the middle discussion, the court stated: "Now, let's assume 71. for purposes discussion were favorably entertain [the plaintiffs' argument in -court statement went outside scope of the first report], horse out of the barn, how correct it?" Id. at In response this, the counsel indicated mistrial the only possible remedy, they had not obtained expert rebut the Id. 66-67. Alternatively, plaintiffs' spontaneous fracture theory. counsel argued needed "strike that testimony from the record tell the jury there's no evidentiary basis for doctor just said[.]" 67.

More discussion ensued, with the trial court ultimately concluding that it would deny the motion for a mistrial, read portions of the first report the jury, "and do a curative [instruction] say, there no alternative theory." 71. believe the first indication the court expressed any intent to exclude the spontaneous fracture theory under the Court Order.

However, the court's subsequent actions immediately contradicted what initially appeared a decision to preclude the spontaneous fracture theory. First, the order the objected -to testimony Dr. Henzes to stricken from the record as counsel requested. Second, instruction given appeared to have reinforced the notion that a factual for to decide (and not, therefore, specifically precluded by the Court Order). For instance, court instructed the jury follows:

Ladies Gentleman of the jury, want talk you little about the objection sidebar we just had. In the authored dated August 19th, 2014 --and I'll let you know what I'm reading from, doctor, so you can read along me. On Page 2, second paragraph where starts, "The mechanism of," you see where I'm talking about? "The mechanism of the patient's injury."

Okay, now, there's issue we're talking about causation. In other words, the dispute being, fall and leg broke ... so fall would have been cause it? And the mechanism was --I'm going to read to you says report, okay? And then, I'm going talk to you little bit about how it works. Because when you get verdict slip this case, question going to be; "Do you find - defendant was negligent you find that the defendant violated the standard of care?" That's why they're talking about the standard of care here. A violation of the standard of care is negligence in Pennsylvania. And then, the next one would be, "Did the violation cause the injury?" Okay, the person harmed, is their factual cause of harm that violation of standard of care? And I one of the lawyers made reference to it in the opening. You can run red light and not hit anything nobody hits you and you were negligent but you got away it because there no damage, no harm, okay? Well, this particular case, the alternative theories that the doctor just talked about don't necessarily reflect the wording in report. So want to read to you the specific wording Henzes' report and kind of we're going to hold him to that, okay? And what the report says. But here's what want you to understand. The report says, "The mechanism of the patient's injury would be due to osteoporotic state of her bones." Now, you have to determine what that means, okay? It might mean, if you fell, you wouldn't have broken your bones because you're osteoporotic. But that's what says. Then, it says, "The pivoting she was attempting to would be very similar to she would do each day getting out bed and into her wheelchair participate activities nursing home. The only difference would stool she would step up onto sit the exam table. records reflect Mr. Guse was attempting her--" I'm sorry, "her balance fell. It does not appear at any time tried navigate onto stool herself." That's the testimony the doctor, any expert generates held fair scope of the four corners of the document. So that's what you need digest far as testimony concerned. 71-75.

Nowhere court's rather confusing instruction court directly indicate jury must ignore or disregard the spontaneous fracture theory. Instead, the court appears to have again construed the question factual resolved jury. While the - instructed hold Dr. Henzes four corners of the admitted First Report, court also told the jury that "the alternative theories doctor just talked about don't necessarily reflect the wording in his report." Id. at (emphasis added). This instruction, therefore, dovetails closely with the comments the made in granting the motion in limine, and not with the plaintiffs' argument barred law pursuant the Court Order. See N.T., 4/27/15, 33-34 ("They have their theory Dr. initial report means and you have yours. And if, fact, supplemental report is a clarification, then it's not adding anything new, go with the original report. So, the motion limine on April 21st granted. Okay? don't necessarily has anything it. I don't necessarily think the going to conclude what you guys conclude.").

The trial court indicates third (and last) purported violation of the Court Order occurred when, during redirect examination, Guse's counsel asked Dr. Henzes, "[the plaintiffs' counsel] asked you questions about lost balance and falling. Now, you had mentioned your report initially twisting?" N.T., 4/29/15, Henzes answered, "[y]es." Id. Counsel then asked him, "[n]ow, can patient have break then fall?" answered, again, "[y]es." Id. counsel objected, trial court stated: "Sustained. You're going area we already covered it's report. It's not allowed. Disregard testimony. That conceptual question about the patient generally the patient this case." Id. believe first time trial court adequately and

sufficiently conveyed fracture theory was being barred premised on the Court Order's exclusion of any new theories contained Report, time court clearly indicated not going resolved by jury. As no subsequent violations of the Court Order (so defined) occurred, I would conclude, contrary Majority, abused its discretion granting premised these purported violations of the Court Order. respectfully dissent. -