author: REIBMAN, J.,

text:
    Wagstaff v. The Morning Call Inc.

      C.P. of Lehigh County,
    no. 94-C-2104.

      Victor N. Lea, for plaintiff.

      Malcolm J. Gross, for defendants. ■
    April 12, 1999
   REIBMAN, J.,

This is a defamation action arising out of a newspaper article. Before the court is defendants’ motion for summary judgment.

The article was printed in the January 8,1994 edition of defendant The Morning Call Inc.’s newspaper of general circulation, The Morning Call, under the headline “N.J. Holdup Suspect Has Storied Record; Las Vegas Pair Caught Following Police Chase” and byline of defendant Kristin Casler. It is about two men who came to the Lehigh Valley from Las Vegas to commit a robbery at a New Jersey bank. The article states the two men, one armed with a shotgun and the other with a handgun, entered the Pohatcong Township, Warren County, bank at 11 a.m., announced the holdup, and left the bank with an amount of money. A dye pack in the money exploded as they were leaving the bank, and they abandoned the money. A police officer arrived as the men fled the bank in their automobile. He was joined by another officer. The article describes an ensuing automobile chase in which the men fired multiple gunshots at the pursuing police officers. One of the robbers was wounded in the arm by return fire from the police and both men were captured. A New Jersey prosecutor is quoted as describing the incident as “a very violent episode.”

The article describes one of the men, John Jacob Welty, as a former resident of the Lehigh Valley area and “longtime bank robber.” It states:

“Officials described ‘Jake’ Welty as a daring ‘Dillinger-type’ criminal who lives for the thrill of his crimes, serves his time and gets right back behind the gun. The 64-year-old who leaned out the window and fired at police while speeding down a highway on Thursday has a criminal record dating to 1948, including convictions for bank robberies in Bath and Pohatcong and for stealing government rocket launchers, according to Morning Call files. He also escaped from Rockview State Prison in 1957.”

The article proceeded to provide a more detailed account of Welty’s extensive criminal record, which began when he was 19 years old, was concentrated within the Lehigh Valley, where The Morning Call is circulated, and included a period of incarceration at “the federal prison in Marion, 111., where the most hardened criminals are sent.”

The article states Welty “stored guns and dynamite at his base in an Allentown garage” and “[a]fter Welty and Gallegos [the second man] were arrested, police learned they had been using Wagstaff’s Auto Repair at 1123 North Fenwick Street, Allentown, as their base of operations. Investigators also believed a third suspect might return there.”

The article reported law enforcement officers, including “the Allentown Emergency Response Team and FBI,” entered the garage with a search warrant and “found two sticks of dynamite, two sawed-off shotguns and other weapons, smoke bombs and .45 caliber Black Talon bullets that flare at the end, causing extensive body damage, Allentown Capt. Ronald Manescu said. Police also found the suspects’ belongings, identification and plane tickets.”

Finally, the article states:

“The man who leases the garage, James Transue of Palmerton, approached the garage while police watched from afar. He knocked on the door, and when no one answered he attempted to drive away. Police stopped and questioned him, but Manescu said they had no evidence he was involved in the holdup, and he was released.

“According to the search warrant application, Gallegos admitted the robbery. He told police the BMW used in the holdup was brought to the Allentown garage where he and Welty were staying. Officials said the car was stolen in Bethlehem Township. ‘From the garage, we got additional leads which we’re actively pursuing,’ [the New Jersey prosecutor] said.”

Plaintiff, William Wagstaff, owner of W.M. Wagstaff Auto Repair, instituted this defamation action alleging that Wagstaff’s Auto Repair was not used as a base of operations for Welty’s criminal activity, and that as a result of the article’s false statement to the contrary, he has suffered extreme mental anguish, damage to his reputation, personal humiliation and pecuniary loss. The Morning Call Inc. and Casler (collectively defendants) move for summary judgment on the grounds that plaintiff has failed to meet his burden of proving falsity, that the article is substantially true, and that plaintiff is a public figure and as such cannot, establish by clear and convincing evidence defendants acted with actual malice.

“Summary judgment is properly entered where the pleadings, depositions, answers to interrogatories, and admissions, together with affidavits demonstrate that no genuine, triable issue of fact exists and that the moving party is entitled to judgment as a matter of law.” Smitley v. Holiday Rambler Corp., 707 A.2d 520, 525 (Pa. Super. 1998). The burden rests squarely on the moving party to prove that no genuine issue of material fact exists. Id. However, an adverse party is required to identify in the response to the summary judgment motion “evidence in the record establishing the facts essential to the cause of action or defense which the motion cites as not having been produced.” Eddy v. Hamaty, 694 A.2d 639, 643 (Pa. Super. 1997) (citing Pa.R.C.P. 1035.3).

In reviewing a motion for summary judgment, the record is examined in the light most favorable to the non-moving party and all doubts are to be resolved against the moving party. Long v. Yingling, 700 A.2d 508, 512 (Pa. Super. 1997). Moreover, summary judgment should be granted only in cases that are free and clear from doubt. Hoffman v. Brandywine Hospital, 443 Pa. Super. 245, 250, 661 A.2d 397, 399 (1995).

In an action for defamation, a plaintiff must prove: (1) the defamatory character of the communication; (2) its publication by the defendant; (3) its application to the plaintiff; (4) the understanding by the recipient of its defamatory meaning; (5) the understanding by the recipient of it as intended to be applied to the plaintiff; and (6) abuse of a conditionally privileged occasion. 42 Pa.C.S. §8343(a); Jones v. Snyder, 714 A.2d 453, 455 n.6 (Pa. Super. 1998); Iafrate v. Hadesty, 423 Pa. Super. 619, 621 A.2d 1005 (1993).

Current defamation law is the culmination of various attempts by our state and federal courts to balance the competing interests between the common law of defamation, which is designed to protect the reputation of individuals, and First Amendment guarantees, which are designed to assure vigorous debate on issues of public concern. In New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), the Supreme Court sought to ensure the “uninhibited, robust, and wide-open” debate on public issues by mandating that,liability will not arise in cases brought by public officials against print media absent a showing, by clear and convincing evidence, of actual malice, to wit, the statement was made with knowledge that it was false or with reckless disregard of its truth or falsity. Three years later, the court extended the constitutional standard of “actual malice” to “public figures.” Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967) (plurality opinion). The court, however, specifically refused to extend this standard to private persons. Gertz v. Robert Welch Inc., 418 U.S. 323, 342-50, 94 S.Ct. 2997, 3008-3012, 41 L.Ed.2d 789 (1974).

In Gertz, Justice Powell offered general guidance for defining circumstances when an individual may be classified as a public figure which would necessitate applying the rigorous New York Times actual malice standard. In the first instance, there are “all-purpose public figures,” such as politicians who have become household names. These individuals “occupy positions of such persuasive power and influence that they are deemed public figures for all purposes.” See Schiavone Const. Co. v. Time Inc., 847 F.2d 1069, 1076 (3d Cir. 1988), citing Gertz, 418 U.S. at 345. The second, and more common type of public figures, are “limited purpose public figures.” These individuals voluntarily inject themselves or are “drawn into a particular public controversy” and thereby become a public figure for a limited range of issues or for a narrow purpose.

Defendants do not contend plaintiff is a public figure for all purposes. Rather, they contend he is a limited purpose public figure because the robbers who were the subject of their article took up residence in his building.

The typical limited purpose public figure will have voluntarily thrust himself to the forefront of a particular public controversy or concern in a manner intended to obtain attention. For example, in Marcone v. Penthouse International Magazine for Men, 754 F.2d 1072 (3d Cir. 1985), cert. denied, 747 U.S. 864, 106 S.Ct. 182, 88 L.Ed.2d 1151 (1985), the United States Court of Appeals for the Third Circuit found the plaintiff, an attorney who represented members of notorious motorcycle gangs and had social contacts with its members, was a limited purpose public figure on the issue of his alleged participation in a drug conspiracy with them. In McDowell v. Paiewonsky, 769 F.2d 942 (3d Cir. 1985), an architect who participated in numerous known controversial building projects was a limited purpose public figure as to his participation in those projects. In those instances, by involving themselves with controversial persons or projects, it was foreseeable for the plaintiff to become the subject of discussion about them.

However, it is not necessary for a plaintiff to have injected himself voluntarily into a public controversy, or foresaw becoming involved with it, in order to be deemed a limited purpose public figure. In Gertz, supra, Justice Powell noted an individual could be “drawn into” a particular public controversy through no purposeful action on his own. 418 U.S. at 345. For example, in Dameron v. Washington Magazine Inc., 779 F.2d 736 (D.C. Cir. 1985), an air-traffic controller who had been on duty at the time of an airplane crash was deemed a limited purpose public figure for the purpose of discussing the crash. In Wells v. Liddy, 1 F. Supp.2d 532 (D. Md. 1998), a secretary at the Democratic National Committee at the time of the Watergate break-in was deemed to be a limited purpose public figure as to the reasons behind the break-in.

Whether a particular person is a limited purpose public figure depends upon the nature of the controversy and the extent of plaintiff’s involvement with it. Wolston v. Reader’s Digest Assoc., 443 U.S. 157, 167, 99 S.Ct. 2701, 2707, 61 L.Ed.2d 450 (1979). For example, in Wolston, the plaintiff had pled guilty to contempt of court when he failed because of ill health to respond to a subpoena directing him to appear before a grand jury investigating a suspected Soviet espionage ring. He promptly communicated his desire to testify. When the government rejected his offer, he passively accepted a one-year suspended sentence and was placed on three years probation. The alleged defamatory publication appeared 16 years later. It claimed plaintiff had been indicted for espionage and had been a Soviet agent. The Supreme Court, with the benefit of 16 years of hindsight, concluded plaintiff had “no special prominence” in the public issue, the investigation of Soviet espionage. His only involvement was to defend himself against the contempt charge when he was dragged unwillingly by the government into the controversy.

In Gertz, supra, a youth had been shot and killed by a police officer. Plaintiff was a lawyer who represented the youth’s family in a civil action against the police officer. The state prosecuted the police officer criminally for murder. Plaintiff attended the coroner’s inquest into the youth’s death, but neither discussed the police officer with the press nor played any part in the criminal proceeding. The Supreme Court concluded plaintiff’s connection with the police officer’s criminal prosecution was too remote to qualify him as a public figure in an article about the criminal prosecution.

In Wolston and Gertz, the plaintiffs’ involvement was too attenuated to the public controversy, the investigation of Soviet espionage and the criminal prosecution of the police officer, to make them public figures even for the limited purpose of those subjects about which the alleged defamatory publications were written.

In Iafrate, supra, the Superior Court concluded the plaintiff was not a public figure because the nature of the controversy was purely private. In Iafrate, plaintiff planned a July 4 party for between 150 and 200 guests on his “rural tract” of land near Slatington, Lehigh County. His neighbor contacted the newspaper to express her concerns about the party. The neighbor apparently exaggerated the number of guests anticipated, and the number of bands participating, at the party. The newspaper published an article quoting the neighbor, who inferred the party would attract “traffic, garbage, drugs, who knows . . . .” The Superior Court found there was no public controversy whatsoever until after the neighbor contacted the newspaper and the newspaper published its article repeating her fears and concerns. At the time the article was published the dispute was a private dispute between neighbors; it had no interest, ramifications or consequences beyond them. There was no public debate, and plaintiff had not been contacted by public officials and had received no public complaints about the planned party until after the neighbor complained and the article was published. The Superior Court concluded the newspaper could not make a public figure out of private person merely by writing about a private matter and thereby drawing attention to it.

Here, a brazen criminal act of breathtaking proportion had been committed on the public streets within the newspaper’s circulation area. When the alleged defamatory article was published, the story was fresh and the newspaper was in hot pursuit of it.

Two men, both well armed, one with ties to the Lehigh Valley and an extensive criminal record consisting of robbing banks, stealing government rocket launchers and escaping from a state prison, came to the Lehigh Valley from Las Vegas for the purpose of robbing an area bank. They committed their robbery in broad daylight, and led pursuing police on an automobile chase in which gunfire was exchanged. One of the robbers was wounded, and both were captured. At the place the robbers made their base of operations, police found sticks of dynamite, sawed-off shotguns and other weapons, bullets designed to cause extensive body damage, ski masks and airplane tickets. Police suspected a third person might also have been involved and return to the robbers’ base of operations.

The article raised a number of questions of immediate, public concern involving, inter alia, the safety of the community; the integrity of its banks; the availability of guns and ammunition to former convicts; the brazenness of criminals; the violence in our society; the effectiveness of law enforcement; the deterrence of our criminal justice system; why these robbers chose to come to the Lehigh Valley from Las Vegas to rob a bank; where they stayed and what they did while in the Lehigh Valley; and whether other persons were involved with them.

Plaintiff, by his own conduct, was drawn into these questions. He leased the space which became the robbers’ base of operations. The leased space was a storage garage in the same building as Wagstaff’s. Only one sign, which read “Wm. Wagstaff Auto Repair,” was on the building. This connection is sufficiently related to certain aspects of the public controversy — i.e. where the robbers stayed and whether other persons might be involved with them — to make plaintiff a public figure for those narrow, limited issues. To that extent, plaintiff found himself in the path of legitimate inquiry.

The alleged defamatory statement, that Wagstaff’s Auto Repair was the robbers’ base of operations, was germane to the plaintiff’s limited participation in the controversy. See Waldbaum v. Fairchild Publications Inc., 627 F.2d 1287 (D.C. Cir. 1980); cert. denied, 449 U.S. 898, 101 S.Ct. 266, 66 L.Ed.2d 128 (1980). Accordingly, plaintiff is required to establish defendants published the article with “actual malice” — that is, with knowledge that it was false or with reckless disregard of whether it was false or not. Id.; Harte-Hanks Communications Inc. v. Connaughton, 491 U.S. 254,279-80, 84 S.Ct. 710, 725-26, 11 L.Ed.2d 686 (1964), citing New York Times, supra. Actual malice must be shown by clear and convincing evidence. Id.

Plaintiff contends defendants acted with reckless disregard because they failed to investigate, lacked evidence to support Casler’s contention that she received any additional information from police sources, failed to effectively review and edit the article, and failed to follow accepted journalistic procedures. However, it is not relevant whether a prudent journalist would have exercised more caution than a particular defendant, or would have investigated before publishing. Id.; see also, St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968) (reckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing). Rather, what is relevant is whether plaintiff can establish defendants had a high degree of awareness that the article contained falsehoods. Plaintiff simply has not met this burden. In fact, plaintiffs building did not contain any outside markings to differentiate between the two spaces. Moreover, prior to publishing the article, Casler interviewed Deputy Chief Monahan of the Allentown Police Department, reviewed the search warrant issued against plaintiff’s property and then confirmed the accuracy of the warrant at the district justice’s office who authorized the warrant. Casler also could not locate plaintiff for comment prior to publication. The only other way defendants could have ascertained Wagstaff’s and the storage garage were separate properties was to search deed records. This is not required. Accordingly, defendants’ motion for summary judgment is granted.

ORDER

And now, April 12, 1999, upon consideration of defendants’ motion for summary judgment, plaintiffs opposition thereto, the briefs of counsel, and after oral argument thereon, and for the reasons set forth in the accompanying opinion, it is ordered that said motion is granted.

It is further ordered that judgment be entered in favor of defendants The Morning Call Inc. and Kristin Casler and against plaintiff William Wagstaff individually and d/b/a Wagstaff’s Auto Repair in no amount.

      . The Lehigh Valley includes Lehigh and Northampton counties, PA, and Warren County, NJ.

      . A plaintiff seeking damages against a media defendant for speech of “public concern” must first establish the defamatory statements were false. While recognizing the burden of requiring the plaintiff to show falsity will “insulate from liability some speech that is false, but unprovably so,” the United States Supreme Court concluded that to be the better consequence than deterring or chilling free speech by placing the burden on media defendants to prove truth. See Ertel v. Patriot-News Co., 544 Pa. 93, 99, 674 A.2d 1038, 1042 (1996), citing Philadelphia Newspapers Inc. v. Hepps, 475 U.S. 767, 775, 106 S.Ct. 1558, 1563, 89 L.Ed.2d 783 (1986); see also, Dougherty v. Boyertown Times, 377 Pa. Super. 462, 474, 547 A.2d 778, 784 (1988).
      Plaintiff contends defendants falsely identified Wagstaff’s as the location of the alleged bank robbers’ base of operations when they really operated out of a private storage garage next to and separate from Wagstaff’s, albeit in the same building. The storage garage and Wagstaff’s have separate addresses, parking lots and tract assignments; and James Transue rented the storage garage and had placed a padlock on it. On the other hand, defendants contend plaintiff is making a distinction without a difference because the entire building is operated and controlled by Wagstaff’s; the building was identified with only one sign which read “Wm. Wagstaff Auto Repair”; tax returns do not indicate a distinction between the two spaces; the bills for both spaces were apparently paid from Wagstaff’s checking account; the entire building is insured by Wagstaff’s; and the building which houses both spaces is covered by one commercial loan.
      Viewing the foregoing in the light most favorable to plaintiff, infra, a genuine issue of material fact exists as to whether plaintiff can establish the alleged criminal activity took place in an area separate from Wagstaff’s. Compare Ertel, 544 Pa. at 99, 674 A.2d at 1042 (summary judgment granted where plaintiff failed to offer evidence that any of the material at issue was false and his complaint was silent as to any falsity); and Bobb v. Kraybill, 354 Pa. Super. 361, 364, 511 A.2d 1379, 1381 (1986) (summary judgment granted where plaintiff was unable to claim that the articles contained any falsehoods). Therefore, defendants’ motion is denied on this ground.

      . In his order and opinion dated February 26,1996, the Honorable James N. Diefenderfer, now senior judge, concluded that whether the article was true or not presented an issue of fact for the jury.

      . Section 8343(a) also required a plaintiff to prove special harm resulted to him from the alleged defamatory publication. However, Pennsylvania has adopted the rule of Restatement (Second) of Torts §569 (1977), that all libels are actionable without proof of special harm. Curran v. Philadelphia Newspaper Inc., 376 Pa. Super. 508, 512 n.3, 546 A.2d 639, 641 n.3 (1988).

      . Whether a person is a public or private figure is a question of law to be determined in the first instance by the court. Brown v. Philadelphia Tribune Co., 447 Pa. Super. 52, 58, 668 A.2d 159, 162 (1995); Iafrate, 423 Pa. Super, at 623, 621 A.2d at 1007.

      . The bank robbery occurred on January 6, 1994. Casler learned of it the next day, The alleged defamatory article appeared the following day, January 8, 1994.

      . Plaintiff’s assertion that the article was false because the storage garage where the robbers resided is separate from Wagstaff’s, the loci reported in the article, has no bearing on determining whether defendants acted with actual malice absent a showing defendants had a high degree of awareness of this fact. See Bose Corp. v. Consumers Union of United States, 466 U.S. 485, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984) (“there is a significant difference between proof of actual malice and mere proof of falsity.”).


source: Caselaw Access Project

author: FARINA, J.,

license: Public Domain

text:
    Weaver v. Wilkens
    C.R of Lancaster County,
    no. 6062-1996.

      Thomas C. Wee, for plaintiff.

      David W. Mersky, for defendants.
    July 3, 1997
   FARINA, J.,

Before the court are defendants Frederick and Patricia Carlin Wilkens’ preliminary objections to the complaint filed December 9,1996, by plaintiff John H. Weaver t/a John H. Weaver Tile and Wood, a Pennsylvania contractor specializing in tile and wood installation. Plaintiff commenced this action against defendants, seeking compensation for work performed in defendants’ New Jersey home from April through August 1995. Defendants preliminarily object on the following bases: (1) lack of in personam jurisdiction; (2) the complaint contains impertinent matter; (3) insufficient specificity of the complaint; (4) defective service, and (5) forum non conveniens. For the reasons that follow, defendants’ preliminary objections are overruled.

The relevant facts pled in the complaint which at this stage must be accepted as true are as follows: Defendants attempted to initiate contact with plaintiff by visiting plaintiff’s showroom in Pennsylvania in April 1995 and defendants actually initiated contact with plaintiff by meeting plaintiff at his showroom in November 1995. Defendants delivered to plaintiff in Pennsylvania, via facsimile, certain plans and sketches for purposes of the preparation of a proposal and visited plaintiff’s showroom again in February 1996, for the purpose of selecting tile for their home. In April 1996, defendants accepted plaintiff’s bid by delivering to plaintiff in Pennsylvania, via U.S. mail, a deposit in the amount of $2,200. From November 1995 through April 1996, during which negotiations were conducted, defendants made at least 18 telephone calls to plaintiff at his workplace and his home. Over the course of the parties’ relationship, defendant made more than 50 telephone calls to plaintiff. Additionally, all payments which were and are due by defendants to plaintiff, were due at plaintiff’s place of business.

These facts demonstrate that defendants purposefully availed themselves of the privilege of conducting activities in Pennsylvania. Defendants’ contacts with Pennsylvania were far from attenuated and were purposefully and continuously directed into Pennsylvania at plaintiff. Therefore, Pennsylvania’s exercise of jurisdiction over defendants would not offend any notion of fair play and substantial justice. See Burger King Corp. v. Rudzewicz, 471 U.S. 462, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985); Kubik v. Letteri, 532 Pa. 10, 614 A.2d 1110 (1992).

Defendants also object to paragraph 16 of the complaint, claiming it contains impertinent matter. The allegation in paragraph 16 is supportive of plaintiff’s claim and is relevant to the issues. As such, it is not impertinent and should not be stricken. Defendants also argue that the complaint is not sufficiently specific. However, reading the complaint as a whole and accepting defendants’ admission that a contract was entered into, the complaint contains sufficient specificity.

Regarding defendants’ objection to service, plaintiff’s counsel mailed a copy of the complaint to each defendant via certified mail, return receipt requested, by cover letter dated December 9, 1996. The return receipt for each defendant was returned to plaintiff’s counsel, was signed by “P. Albers” and identified that the address of each defendant was “correct as shown.”

This form of service comports with the applicable rules. 42 Pa.C.S. §5323(a)(3), service of process on persons outside this Commonwealth, provides that service may be made by “any form of mail addressed to the person to be served and requiring a signed receipt.” Pa.R.C.P. 403 provides that process “shall be mailed to the defendant by any form of mail requiring a receipt signed by the defendant of his authorized agent.”

Defendants complain that P. Albers, though representing to the postal authority by signing the receipt that he or she was an agent of defendants, is not their authorized agent. Under the rules of service, however, this fact is immaterial. Apparently, the person signing the return receipt was, at least to some extent, acting as defendants’ agent. Service was properly made.

Defendants’ final preliminary objection surrounds the convenience of the chosen forum. Under the doctrine of forum non conveniens, the court may decline to exercise jurisdiction only where the forum selected by the plaintiff is “manifestly inappropriate” and an alternate forum is available. Plum v. Tampax Inc., 402 Pa. 616, 168 A.2d 315 (1961). Instantly, NJ is an available forum, however, plaintiff’s choice of forum is to be given great weight. Daugherty v. Inland Tugs Co., 240 Pa. Super. 527, 359 A.2d 465 (1976). Additionally, defendants have failed to set forth any facts which demonstrate “such oppressiveness and vexation to [them] so as to be out of all proportion to plaintiff’s convenience.” Tyro Industries Inc. v. James A. Wood Inc., 418 Pa. Super. 296, 301, 614 A.2d 279, 282 (1992). The inconvenience, if any, experienced by defendants in defending the suit in Lancaster does not appear to be great, nor is the forum “manifestly inappropriate.”

Accordingly, we enter the following:

ORDER

And now, July 3, 1997, upon consideration of defendants’ preliminary objections and the briefs of the parties in regard thereto, the court orders and directs that the preliminary objections are denied. Defendants shall file an answer to plaintiff’s complaint within 20 days.


author: LAWLER, J.,

text:
    Chajkowsky v. Wong

      C.P. of Bucks County,
    no. 91-02407-19-2.

      Thomas B. Grier, for plaintiff.

      Mark R. Zolfaghari, for defendant.
    April 20, 1999
   LAWLER, J.,

Defendant appeals the order of this court dated March 18, 1999, denying his motion for post-verdict relief. Pursuant to Pa.R.A.P. 1925(b), defendant has submitted a concise statement of matters complained of on appeal. This opinion is filed in accordance with Pa.R.A.P. 1925(a).

BACKGROUND

At approximately 3 p.m. on March 31, 1989, Mrs. Irene Chajkowsky was involved in a motor vehicle accident. It took the rescue squad 30 minutes to extract her from her vehicle, as she was pinned beneath the dashboard and steering wheel. Mrs. Chajkowsky was then transported to the emergency room of St. Mary Hospital. Her blood pressure upon arrival was considered normal, but she complained of right hip and chest pain.

Defendant, Alfonso Wong M.D., was the attending physician in the ER of St. Mary Hospital when Mrs. Chajkowsky arrived. Dr. Wong ordered a chest x-ray, which showed multiple rib fractures and left hemothorax. The radiologist interpreting the films believed the hemothorax to be large, while Dr. Wong thought it to be small. Dr. Wong elected to monitor the hemothorax through observation of Mrs. Chajkowsky’s vital signs, such as blood pressure, heart rate, breathing sounds, and mental status. Dr. Wong characterized her condition as stable. At 6:35 a.m. on April 1, 1989, Mrs. Chajkowsky went into cardiac arrest. At 6:45 a.m., she was found unresponsive. After failed attempts at resuscitating her, Dr. Wong pronounced Mrs. Chajkowsky dead.

On March 26, 1991, plaintiff, George Chajkowsky, individually and as administrator of the estate of Irene Chajkowsky, commenced a medical malpractice action, alleging that defendant, Dr. Wong, was negligent in the care and treatment of Mrs. Chajkowsky. Specifically, plaintiff alleged that Dr. Wong failed to diagnose and treat a large left hemothorax and that this negligence contributed to Mrs. Chajkowsky’s death.

Trial, which was bifurcated, began September 22, 1998. During the liability phase of the case, plaintiff’s attorney produced surgeon Robert W. Driscoll D.O. as an expert witness. N.T., 9/22/98, p. 164. Dr. Driscoll offered opinions relating to defendant’s management of Mrs. Chajkowsky. He discussed the existence of protocols and identified texts he considered to be authoritative regarding the treatment of a hemothorax. N.T., 9/22/98, pp. 188-96. The testimony was objected to by defendant’s counsel, but the objection was overruled by this court. N.T., 9/22/98, p. 194. Finally, Dr. Driscoll offered his opinion regarding the manners in which defendant departed from the applicable standard of care. N.T., 9/23/98, pp. 29-41.

The attorney for defendant produced two expert witnesses during the trial. The first was Dr. Marvin Aronson, former chief medical examiner for the City of Philadelphia. He testified as an expert in the field of forensic pathology. N.T., 9/23/98, pp. 105-115. Dr. Aronson’s testimony included his opinion regarding the cause of Mrs. Chajkowsky’s death. N.T., 9/23/98, p. 111. Dr. Melvin A. Moses was also introduced as an expert witness. N.T., 9/23/98, p. 151. He testified as to whether Dr. Wong’s conduct was within the applicable standard of care. N.T., 9/23/98, p. 155. However, this court sustained objections to questions posed to Dr. Moses regarding Mrs. Chajkowsky’s cause of death. N.T., 9/23/98, pp. 157-59.

On September 24, 1998, at the close of the evidence, the jury returned a verdict in favor of plaintiff and against defendant. After hearing testimony relating to damages, the jury awarded $ 1,501,700 under the Wrongful Death Act and $500,000 under the Survival Act. N.T., 9/24/98, p. 142.

ISSUES ON APPEAL

In his statement of matters complained of on appeal, defendant asserts two points of error. First, defendant argues that this court erred when it allowed plaintiff’s expert to testify regarding treatises and protocols. Second, defendant contends that this court erred in restricting defendant’s expert from testifying on the cause of death issue. These two alleged errors, defendant argues, influenced the verdict of the jury such that a new trial is warranted.

DISCUSSION

1. No Hearsay Evidence Was Admitted Into Evidence Because the Standard of Care Was Not Established by Reference to Learned Treatises and Protocols

Defendant argues that plaintiff’s expert, Dr. Driscoll, introduced hearsay testimony into evidence. See concise statement of matters complained of on appeal at ¶1. It is defendant’s contention that Dr. Driscoll introduced learned treatise testimony into evidence when he relied on trauma protocols as substantive evidence for the standard of care of emergency room physicians. This alleged error, defendant maintains, influenced the verdict of the jury.

The testimony regarding protocols elicited from Dr. Driscoll by plaintiff’s attorney begins at N.T., 9/22/98, p. 188:

“Q: Doctor, you mentioned earlier when we were talking about your background and your education protocols for treatment of certain trauma and I want to know first whether there were protocols which existed in March of 1989 for the management of hemothorax at a level two trauma center.”

Defendant’s counsel objected on the basis that protocols are not exemplary of the standard of care and that someone other than Dr. Driscoll was needed to testify that a protocol represented the standard of care. The objection was overruled. N.T., 9/22/98, p. 189. The direct examination of Dr. Driscoll resumed at N.T., 9/22/98, p. 189:

“Q: Going back to March of 1989 and talking about protocols, I guess first what I ought to ask you, what is a protocol in terms of managing trauma?
“A: Protocol is almost like a decision, what you do in the event of this, what do you do in the event of this, the patient presenting with following set of circumstance, with the history, what do you do? What is the next step? This is positive, do you do this, or do that?

“It is a standard way and that is part of the ATLS training course, what you do in these cases is just as simple as A, B, C, these are established in 1982, these trauma protocols — I think it was 1982 came out, when the Pennsylvania trauma systems foundation finally got on the ball and started to — do you want to say something?

“Defense attorney: I will let you finish.

“A: Started to organize the management of the trauma patient in the Commonwealth of Pennsylvania. They started establishing trauma center, level one which was certain criteria, level two somewhat less than level one, no level threes were ever designated. Yes, the protocols are there.”

Defense attorney objected to the testimony and moved to strike on the basis that protocols were not mentioned in Dr. Driscoll’s reports. N.T. 9/22/98, p. 190. The objection was overruled. N.T., 9/22/98, p. 193. The direct examination of Dr. Driscoll resumed at N.T., 9/22/98, p. 193:

“Q: Doctor, in March of 1989, was there a protocol for management of hemothorax at a level two trauma center?
“A: I can’t produce a protocol but there has to be. This is the way these patients are managed, this is the way the ATLS course requires. Anyone who is a graduate of that course knows the protocols.
“Q: Is that protocol something that is taught at the advanced trauma and life certification?
“A: It is taught at the advanced trauma life support center, advanced trauma life support course. It is in practically every textbook on the management of a trauma patient, it is in books on how to manage this and how you manage that. So if I — in April approximately 1986 were certified by advanced trauma life support I would have been taught that protocol.
“Q: In 1989 and specifically in March of 1989, were there any textbooks which you considered authoritative regarding the management of hemothorax?”

Defense attorney objected on the basis that Dr. Driscoll could not be asked to define an authoritative text and then use it. N.T., 9/22/98, p. 194. The objection was overruled, and plaintiff’s attorney was told to elicit a yes or no answer. The direct examination of Dr. Driscoll continued at N.T., 9/22/98, p. 194:

“A: Were there text that I considered—
“Q: Authoritative in March of 1989 regarding the management of hemothorax?
“A: Yes.
“Q: Can you identify them, please.”

This court overruled defense attorney’s objection. N.T., 9/22/98, p. 195. The direct examination of Dr. Driscoll continued at N.T., 9/22/98, p. 195:

“A: It is pretty standard text out, I think it’s called trauma, it comes out of the Boston city hospitals where the original ATLS — where all of the trauma management began by Adam Cooley (sic), it goes over so narrow — by so narrowly — injury case by injury case on how you manage it.
“Ken Banks (sic) out of Baylor who is chief of the emergency service and chief of the surgical service down there have recognized authority in the United States textbook on the management of trauma patients that deals in detail with what the presenting symptoms signs are, how to manage them.
“The ATLS textbook itself, which all graduates get, lists the protocols. And there is one or two surgical decision-making protocol books, protocol decision treatments, how you proceed with each of the stages.
“Most people practice in trauma surgery who graduate the ATLS know these cold and they are universally accepted to the best of my knowledge throughout the country.
“Q: Doctor, did you mention Maddocks?
“A: Ken Maddocks, yes.
“Q: And Cooley (sic)?
“A: Or Adam Cooley (sic), that is correct, Baltimore City Hospital.
“Q: And the ATLS program?
“A: The ATLS — American ATLS book of protocols this big.
“Q: You mentioned Norton?
“A: That is the author of one of the books. There are several of the protocol books, surgical decision-making I keep them in my library.”

Defendant maintains that this line of questioning constituted hearsay in the form of learned treatise testimony. However, close scrutiny of the direct examination of Dr. Driscoll shows that no hearsay testimony was admitted into evidence.

It is well established that an out-of-court declaration constitutes hearsay if it is offered for the purpose of proving the truth of the matter contained in the declaration. See e.g., Commonwealth v. Jones, 530 Pa. 591, 615, 610 A.2d 931, 942 (1992); Klischer v. Nationwide Life Insurance Co., 281 Pa. Super. 292, 422 A.2d 175 (1980). By contrast, an out-of-court statement is not hearsay when it is not offered for the truth of the matter asserted. See e.g., Spotts v. Reidell, 345 Pa. Super. 37, 42, 497 A.2d 630, 633 (1985); Baldino v. Castagna, 308 Pa. Super. 506, 454 A.2d 1012 (1982).

The statements made by Dr. Driscoll do not fall within the definition of hearsay. In the context of Dr. Driscoll’s testimony, the “matter asserted” would be the establishment of the standard of care for an emergency room physician in treating a hemothorax. Although Dr. Driscoll made mention of protocols and treatises that are authoritative regarding the treatment of a hemothorax, he never defined the standard of care. Dr. Driscoll merely stated what is a protocol, whether a protocol existed in March of 1989, and where the protocol may be found.

Defendant correctly points out that learned writings which are offered to prove the truth of the matters therein are hearsay and may not properly be admitted into evidence for consideration by the jury. See Majdic v. Cincinnati Machine Co., 370 Pa. Super. 611, 622, 537 A.2d 334, 339 (1988). However, that has not occurred in the instant case. Instead of testifying as to their substance, Dr. Driscoll merely identified the learned treatises containing the protocols or standards of care. The identification of these treatises was not for the purpose of establishing the standard of care of an emergency room physician in treating a hemothorax, since the standard was never actually established during the direct examination of Dr. Driscoll. Because the testimony did not have an impermissible purpose, this court allowed its introduction into evidence.

“It is the purpose for which the information is offered, not the manner in which it is introduced, which makes it objectionable.” Majdic, 370 Pa. Super, at 622, 537 A.2d at 340. For instance, testimony where the expert witness read from or referred to a learned treatise has been deemed admissible where it was done for the purpose of supporting the witness’ credibility. See e.g., Nigro v. Remington Arms Co. Inc., 432 Pa. Super. 60, 80-81, 637 A.2d 983, 994 (1993) (where the court allowed a defense expert to read from a book he considered authoritative because the testimony had not been offered to prove the truth of the matter asserted but instead to support his credibility with regard to his expert opinion). Likewise, it has been held that an expert can rely on medical treatises as the basis for rendering an opinion. See e.g., Taliferro v. Johns-Manville Corp., 421 Pa. Super. 204, 216, 617 A.2d 796, 803 (1992). And, of course, learned treatises may be used to impeach expert witnesses. McDaniel v. Merck, Sharp & Dohme, 367 Pa. Super. 600, 622, 533 A.2d 436, 447 (1987).

In sum, Dr. Driscoll did not discuss the substance of the protocol or treatises. There was never any attempt to introduce the protocol itself, or any treatise, into evidence. The standard of care was not established by reference to protocols and treatises. Instead, Dr. Driscoll merely defined a “protocol,” stated whether it existed at the time Mrs. Chajkowsky was admitted into the hospital, and explained where such protocols may be found. This testimony by Dr. Driscoll did not constitute out-of-court statements offered for the truth of the matter asserted. Consequently, this court permitted the testimony into evidence as it did not violate the hearsay rule.

2. Sustaining the Objection to the Testimony of Defendant’s Expert Witness Was Not a Basis for a New Trial

Defendant contends that this court erred in restricting Dr. Moses from testifying on the issue of causation. See concise statement of matters complained of on appeal at ¶2. It is alleged that the preclusion of the expert testimony on causation severely prejudiced the defendant.

The direct examination of defendant’s expert witness, Dr. Moses, was as follows:

“Q: Do you have an idea of what caused this woman’s death?
“Plaintiff’s attorney: Objection.
“The Court: Sustained.
“Q: Do you have an opinion as to the cause of death?
“A: Yes.
“Q: Can you tell me what that is?
“Plaintiff’s attorney: Objection.
“The Court: Sustained.
“Q: In your review of the medical records and the autopsy, did you come to a conclusion as to the damage to this woman’s heart?
“A: Yes.
“Q: Can you tell the jury what that conclusion is?
“A: Well, she had severe — she had three lacerations of her heart, the atrium and the ventricle which are large holes in the heart, which could cause massive bleeding.
“Q: And could this cause death?
“A: Yes.
“Plaintiff’s attorney: Objection.
“The Court: Sustained. There is a way to ask a question of a medical expert and I’m assuming that you know how to do it, because the objections are to the form of your questions.
“Q: Fair enough. Sir, do you have an opinion as to the cause of death in this case?
“Plaintiff’s attorney: Objection.
“The Court: Sustained.
“Q: Do you have an opinion within a reasonable degree of certainty to the cause of death in this matter?
“Plaintiff’s attorney: I have an objection now as to' cumulative testimony. He brought in a witness to testify solely to that issue.
“The Court: Sustained as to the form of the question.” N.T., 9/23/98, pp. 157-59.

This court readily acknowledges that it misheard the last question asked of Dr. Moses. That is the reason the court sustained an objection to the question. However, this error is a harmless error, in which case there is no basis for reversal.

Questions concerning the admission or exclusion of evidence are within the sound discretion of the trial court, and may be reversed on appeal only when a clear abuse of discretion is apparent. Lewis v. Pruitt, 337 Pa. Super. 419, 428, 487 A.2d 16, 20 (1985). The exclusion of evidence is not grounds for the granting of a new trial if evidence of the same fact or facts was introduced by the party applying for a new trial. Eldridge v. Melcher, 226 Pa. Super. 381, 391, 313 A.2d 750, 756 (1973). There is no basis for a reversal and a new trial if the excluded evidence was cumulative in nature. Soda v. Baird, 411 Pa. Super. 80, 86, 600 A.2d 1274, 1277 (1991).

There are no grounds for a new trial in the instant case. Defendant complains that opinion testimony from Dr. Moses regarding the cause of Mrs. Chajkowsky’s death was excluded. However, Dr. Moses’ testimony was preceded by the testimony of Dr. Aronson. Dr. Aronson testified solely to the issue of Mrs. Chajkowsky’s cause of death. See N.T., 9/23/98, pp. 106-111. Because Dr. Aronson had already testified on the cause of death issue, the excluded evidence was cumulative. As a result, the harmless error is not a basis for a new trial.

It is for the above reasons that the order of March 18, 1999 was entered.


author: MASSIAH-JACKSON, J.,

text:
    Burke v. Northrup

      Andrew J. Stern, for plaintiffs.

      William F. Sutton, for defendants.
    May 7, 1999
   MASSIAH-JACKSON, J.,

I. PROCEDURAL HISTORY

The plaintiffs, Ronald and Lisa Burke initiated this medical malpractice action following surgery on Mr. Burke performed by Bruce Northrup M-D. and Richard A. Balderston M.D. at Thomas Jefferson University Hospital. The matter was tried before this court and a jury in June 1998. On June 15, 1998, after a week and a half of trial, a jury verdict was rendered in favor of Dr. Northrup and Thomas Jefferson University Hospital. Pursuant to Rule 227.1, Pa.R.C.P, the Burkes filed timely post-trial motions seeking a new trial. Following receipt of the trial transcript, written memoranda were submitted by the parties and oral argument was presented to the court on April 29, 1999.

II. FACTUAL BACKGROUND

Viewing the evidence in the light most favorable to the verdict winner and giving them the benefit of all reasonable inferences, the following evidence was deduced at trial. See Sundlun v. Shoemaker, 421 Pa. Super. 353, 358, 617 A.2d 1330, 1333 (1992).

Mr. Burke, a resident of Indiana, was involved in a serious automobile accident in April 1990. Vol. IV, N.T. 90. As a result of this accident, Mr. Burke sustained injuries to his head, hand and abdomen. Vol. II, N.T. 4. Mr. Burke also experienced pain in his lower back and in his left leg. Vol. II, N.T. 5. Gary M. Ayres M.D., Mr. Burke’s primary caregiver since 1990, treated Mr. Burke for the injuries he suffered from the accident. Gary M. Ayres M.D.’s video deposition, N.T. 6, 10. After almost a year of treatment, including a sympathectomy, Mr. Burke continued to suffer from back problems and leg pain. He was not able to return to work. Ayres’ dep., N.T. 16. Dr. Ayres recommended, with the advice of neurosurgeons, that Mr. Burke seek a consultation at Thomas Jefferson University Hospital. Ayres’ dep., N.T. 19.

In the spring of 1991, the Burkes traveled to Philadelphia where tests were performed at Thomas Jefferson University Hospital. Mr. Burke was diagnosed with lumbosacral herniated disc disease. Vol. II, N.T. 7. Mr. Burke was informed that neurosurgical intervention was recommended, to which he agreed. Vol. II, N.T. 8. Bruce A. Northrup M.D., a board certified neurosurgeon at Thomas Jefferson University Hospital, met with the Burkes in late July 1991, to assess Mr. Burke’s condition for surgery. Vol. VI, N.T. 18, 31, 33.

Mr. Burke was admitted to Jefferson Hospital on August 7, 1991, under Dr. Northrup’s service. Vol. VI, N.T. 35. Dr. Northrup had responsibility for Mr. Burke’s overall care, which included determining the preoperative and intraoperative doses of antibiotics. Vol. VI, N.T. 180-81. The surgery was performed on August 8, 1991 by Dr. Northrup and Dr. Balderston. Vol. II, N.T. 11; vol. VI, N.T. 36. Dr. Northrup’s surgical duties involved exposing the spine, decompressing the spine, and removing two items: (1) the lamina (the part of the bone in the back of the spine), and (2) the ligaments which were compressing the nerves. Vol. VI, N.T. 36. Dr. Balderston installed metal hardware to support the spine.

Dr. Northrup administered one gram of the antibiotic Ancef to Mr. Burke before the surgery began. Vol. VI, N.T. 48. Another gram of Ancef was administered to Mr. Burke after the surgery was completed and again throughout a 24-hour period. Vol. V, N.T. 180. The surgery as performed was successful. Mr. Burke was discharged from the hospital on Saturday, August 17, 1991.

Plaintiffs testified that on August 13,1991, Mr. Burke complained of pain at the surgical site. Vol. II, N.T. 12-14, 17, 25-26; vol. IV, N.T. 98. The medical records indicated that Mr. Burke’s incision was clean and dry at that time. Vol. VI, N.T. 56, 59, 61. The last note in Mr. Burke’s chart on August 15, 1991 revealed that Mr. Burke was mobile, taking oral medication, had a dry, clean wound and was without fever. A discharge plan was initiated. Vol. VI, N.T. 63. Lisa Burke stated that she did not notice any drainage from the wound a week after the surgery. Vol. II, N.T. 52. Because Mr. Burke was able to walk and his pain was being controlled by oral medications, Dr. Northrup determined that it was appropriate to discharge Mr. Burke on August 17, 1991. Vol. VI, N.T. 69.

On August 21, 1991, Mr. Burke’s sutures were removed at Dr. Paul Hamary’s office, a physician in Indiana. Vol. II, N.T. 26. Mrs. Burke stated that she did not see any redness or drainage of the wound during the removal of the sutures, vol. II, N.T. 67, nor did Dr. Hamary inform the Burkes that there was anything suspicious concerning the wound. Vol. II, N.T. 67.

On August 23, 1991, six days after leaving Jefferson Hospital, Mr. Burke went to an emergency room at Methodist Hospital in Indiana because he had a temperature, a headache and back pain. Vol. II, N.T. 29-31, 68-69. His back was examined, blood studies taken and then he was sent home.

Mr. Burke testified that he went to St. Vincent’s Hospital in Indiana on August 26, 1991 to see Dr. John L. Beghin in order to have his wound cultured. Vol. IV, N.T. 106. In the process of the culture being conducted, Mr. Burke was informed that the wound had opened. Vol. IV, N.T. 107. He was hospitalized and treated for a staph infection. Vol. IV, N.T. 108.

Plaintiffs presented Dr. Jonathan Kersun as a witness by reading portions of his deposition. Vol. V, N.T. 205. Dr. Kersun was a medical resident at Thomas Jefferson University Hospital in 1991. His testimony was: “The patient on the evening of August 16, 1991, was very stable and doing very well, postoperatively. And there was no really uneventful or remarkable thing about the postoperative course that would lead me to suspect that anything might be wrong within the next 12 hours that he was in the hospital.” Vol. V, N.T. 221. Dr. Kersun also stated that persistent pain is common in the postoperative course of some patients. Vol. V, N.T. 222.

The Burkes presented two expert witnesses: Dr. Beth Raucher, an internist at Beth Israel Medical Center, New York, specializing in infection control and infectious diseases, and Dr. Carl Manders, a neurological surgeon in private practice in Indianapolis, Indiana. Vol. II, N.T. 88; vol. Ill, N.T. 14. Dr. Raucher testified as an expert regarding the proper standard of care to follow with respect to the prevention, diagnosis and treatment of infectious disease. Vol. II, N.T. 96. Dr. Raucher stated that Dr. Northrup deviated from the standard of care when he ordered Mr. Burke to be provided with only one gram of antibiotic and failed to give a second dose of antibiotic during surgery. Vol. II, N.T. 112. Based on her research, Dr. Raucher testified that Mr. Burke, because of his large size, should have received a loading dose of two grams of Ancef. Vol. II, N.T. 107.

Dr. Raucher admitted on cross-examination that the authority she relied upon, an article written by Dr. David Williams, stated that “the usual dose” of antibiotic given to a patient is one gram. Vol. II, N.T. 174-75. She also acknowledged that Dr. Williams did not write about adjusting the dosage because of the patient’s weight, nor did he discuss whether the patient should receive a repeat dose. Vol. II, N.T. 175.

Dr. Raucher agreed that Mr. Burke had several good signs postoperatively. She stated that Mr. Burke never had redness at the surgical site, which can be a sign of a deep wound infection. Vol. II, N.T. 180. Dr. Raucher also testified, based on her review of Mr. Burke’s record, that Mr. Burke’s wound was dry and intact, an indication that the wound was healing. Vol. II, N.T. 180. She commented that these signs continued until Mr. Burke’s discharge from Thomas Jefferson University Hospital. Vol. II, N.T. 181.

Dr. Manders opined that Dr. Northrup’s failure to provide an initial dose of two grams and an intraoperative dose of antibiotics during surgery was a deviation from the standard of care. Vol. Ill, N.T. 41-42. Dr. Manders stated that the standard of care when doing a laminectomy, especially with metal instruments, is to give antibiotics during the time the wound is open. Vol. Ill, N.T. 38. Dr. Manders opined that if the procedure is prolonged, which is any surgery which lasts over four hours, then the standard of care is to give another dose of antibiotics. Vol. Ill, N.T. 38-39. Because of Mr. Burke’s large size, Dr. Manders testified that the standard of care in this case would have been to give two grams of antibiotic to Mr. Burke before the surgery began. Vol. Ill, N.T. 38. Dr. Manders agreed that it is within the standard of care to continue to give antibiotics for a period of 24 or 48 hours. Vol. Ill, N.T. 42.

Dr. Manders testified that the signs of a deep wound infection are an increase in back pain and incisional pain, changes in blood count and an elevated temperature. Vol. Ill, N.T. 47. Dr. Manders stated that Mr. Burke did exhibit some of these signs, especially during the last days of his hospital stay. Vol. Ill, N.T. 48. Because Mr. Burke was on Percocet and Tylenol, Dr. Manders stated that Mr. Burke’s real temperature was not being determined. Vol. Ill, N.T. 48.

Dr. Manders further testified that Dr. Northrup deviated from the standard of care by permitting Mr. Burke’s discharge on August 17, 1991. Vol. Ill, N.T. 54. Factors such as Mr. Burke having an elevated white blood count, his complaint of back pain and the seemingly elevated temperature should have delayed Mr. Burke’s discharge. Vol. Ill, N.T. 54. Dr. Manders testified that if Mr. Burke was to be discharged on August 17, 1991, then he should have been directed to a specialist in Indiana within 24 hours of his return home. Vol. Ill, N.T. 55. The patient was diagnosed with a deep wound infection on August 26, 1991. Vol. Ill, N.T. 57. Dr. Manders opined that as a result of the deviations from the standard of care, Mr. Burke suffers from radiculopathy, polyneuropathy, unstable spine and osteomyelitis. Vol. Ill, N.T. 64.

Dr. Manders acknowledged that Mr. Burke’s temperature on August 16, 1991 was 98 degrees, with his maximum temperature being 99 degrees. Vol. Ill, N.T. 74. He confirmed that the appearance of Mr. Burke’s wound was clean, dry and intact on the day he was discharged, August 17,1991. Dr. Manders read the note in Mr. Burke’s record from Dr. Hamary, the doctor who removed Mr. Burke’s sutures on August 21, which commented that normal recovery was going on with the wound. Vol. Ill, N.T. 81.

Dr. Northrup and Thomas Jefferson University Hospital presented Mark Ingerman M.D. as an expert in infectious disease medicine. Vol. V, N.T. 37. Dr. Ingerman testified to a reasonable degree of medical certainty that Dr. Northrup’s treatment of Mr. Burke was appropriate. Vol. V, N.T. 46.

Dr. Ingerman testified that Dr. Northrup did not deviate from the standard of care by not giving a second dose of Ancef during the operation. Vol. V, N.T. 70. The standard in hospitals, as maintained by Dr. Ingerman, is to administer one gram of Ancef two hours prior to surgery regardless of the patient’s size. Vol. V, N.T. 68, 72, 152. The administering of an additional antibiotic within an operative period is at the discretion of the operating physician. Vol. V, N.T. 72.

Basing his opinion on the review of Mr. Burke’s records, Dr. Ingerman testified that Mr. Burke’s discharge on August 17,1991 from Thomas Jefferson University Hospital was appropriate. Vol. V, N.T. 46, 48. Mr. Burke’s complaint of pain at the surgical site, his temperature reading of 99.1 and his white blood count reading of 11.1 were the factors Dr. Ingerman considered in reaching his conclusion. Vol. V, N.T. 61. Mr. Burke’s temperature of 99.1 was insignificant to indicate Mr. Burke had an infection, because Dr. Ingerman determined that Mr. Burke’s temperature was within the normal range after an operation. Vol. V, N.T. 50, 52. Dr. Ingerman opined there were no abnormalities which suggested that a deep wound infection existed. Vol. V, N.T. 48. The plaintiff’s temperature curve was so benign that there was no indication, at that time, that the patient had an infection. Vol. V, N.T. 51. Dr. Ingerman related that most post-surgical patients receive pain control with Tylenol or Tylenol-Plus, a codeine preparation. Vol. V, N.T. 54. A sign of concern may exist, according to Dr. Ingerman, if the patient’s temperature rises to a higher level such as 100.1 or 101. Vol. V, N.T. 54. In order to detect if a patient may have a deep wound infection, Dr. Ingerman explained that the patient would have to have an increased temperature and that there would have to be more signs than those listed in Mr. Burke’s chart. Vol. V, N.T. 55.

Dr. Ingerman stated that if Mr. Burke had a deep wound infection during his stay at Thomas Jefferson University Hospital, then his temperature would have been higher than recorded regardless of the amount of Percocet he consumed. Vol. V, N.T. 96. If Mr. Burke had a deep-seated infection with a staph aureus, not only would he have a significant fever but he would exhibit other problems, such as pus. Vol. V, N.T. 109-110.

Dr. Ingerman testified that Mr. Burke’s white blood count was within the normal standard. Vol. V, N.T. 56. He further explained that an increased white blood count does not always mean that there is an infection, but may also be a sign of stress or strain. Vol. V, N.T. 56. Dr. Ingerman maintained that Mr. Burke’s assessment from the records did not indicate that there was an active ongoing deep-seated infection that needed continued hospitalization or intervention. Vol. V, N.T. 117. He said that a temperature over 100.6, a significantly elevated white blood count, drainage from a wound, redness from a wound, and a change in the character of the pain are indicative of a deep wound infection. Vol. V, N.T. 64.

Dr. Donald Long, a neurosurgeon and director of the department of neurosurgery at Johns Hopkins Hospital, was offered by the defendants as an expert in neurosurgery. Vol. V, N.T. 161. Dr. Long testified that the standard of care for this type of surgery is to give one gram of the antibiotic, Ancef, 30 minutes before surgery. Vol. V, N.T. 172. He stated that Ancef should be used for an additional 24 hours and then discontinued. Vol. V, N.T. 174. Dr. Long testified that a repeat dose of antibiotic should be given six to eight hours after the first dose. Vol. V, N.T. 179. Dr. Long averred that Mr. Burke’s receipt of the initial dose of Ancef at 10:45 a.m. and a second dose at or around 7:30 p.m. was consistent with the standard of care because the dosage was given within an eight-hour period. Vol. V, N.T. 180. Dr. Long stated that the surgeon may choose to give an additional dose during surgery if the operation lasts longer than six to eight hours. Vol. V, N.T. 180.

Dr. Long also testified that Mr. Burke’s discharge was within the standard of care. Vol. V, N.T. 182. Factors such as a temperature in the normal range, a white blood count which was not elevated and a clean, dry wound led Dr. Long to conclude that Mr. Burke’s discharge was proper. Vol. V, N.T. 182. Dr. Long testified that he would not consider an abnormal platelet count as a sign of infection, vol. V, N.T. 189; that Mr. Burke’s request for additional or increased medication was not unusual because the pump previously used to deliver medication had been removed, vol. V, N.T. 198; and that it is common for a patient to experience significant postoperative pain with this type of operation. Vol. V, N.T. 199.

The defendant-doctor testified that it was within the standard of care to give a preoperative dose of one gram of Ancef. Vol. VI, N.T. 47. In order to determine that dosage amount, Dr. Northrup followed the recommendation of pharmacologists of a one gram dose of antibiotic. Vol. VI, N.T. 46. Based on readings and conferences, Dr. Northrup stated that he was also aware that other specialists in his field use one gram as a loading dose. Vol. VI, N.T. 47. This is the standard dose because the drug is given to the lean body mass, and even if the patient gains weight, the lean body mass remains the same. Vol. VI, N.T. 174.

Dr. Northrup further testified that Ancef has a very long half-life and therefore can be given in eight-hour intervals. Vol. VI, N.T.' 48, 185. Dr. Northrup stated that he administers a repeat dose of Ancef if an operation lasts longer than eight hours, which is consistent with the standard of care for the hospital. Vol. VI, N.T. 48. He acknowledged that the standard of care may not apply to other specialists who may have different regimens. Vol. VI, N.T. 48. Dr. Northrup agreed that infection is a risk of this type of operation. Vol. VI, N.T. 68. The defendant testified that there were no studies to date which show a benefit to giving two grams of Ancef as a loading dose and then giving a repeat dose intraoperatively. Vol. VI, N.T. 74.

Dr. Northrup noted that Mr. Burke had an impressive history of pain medication. As of July 1991, Mr. Burke was taking an oral form of morphine every eight hours. Vol. VI, N.T. 31. A significant amount of medication would also be needed during the patient’s hospitalization. Vol. VI, N.T. 51. The progress notes of August 10, 1991 indicated that Mr. Burke had no complaints. Vol. VI, N.T. 55. Dr. Northrup visited the patient on August 12, 1991 and noted that the incision was clean and dry. Vol. VI, N.T. 56. The PCA pump, a manual patient-controlled pump, which Mr. Burke used for medication was removed on August 12, 1991. Vol. VI, N.T. 58. The next day, Mr. Burke began complaining of pain. He did not have a fever and his wound was dry and intact. Vol. VI, N.T. 59. On August 13, 1991, Mr. Burke was visited by Dr. Giancarlo Romano, a neurosurgeon, who noted that Mr. Burke complained of pain, but his appetite was improving. Vol. VI, N.T. 61. Dr. Northrup testified that Mr. Burke’s appetite improvement was a good sign because patients who are sick and feverish generally do not have an appetite. Vol. VI, N.T. 61. Mr. Burke’s medical record indicated that on August 15, 1991, Mr. Burke was seen by Dr. Burrelat, who noted that Mr. Burke had increased mobility, ambulated well and the incision was clean. Vol. VI, N.T. 62.

Dr. Northrup also reviewed the circumstances of Mr. Burke’s discharge from Thomas Jefferson University Hospital. Dr. Northrup explained that there was no reason to order an infectious disease consult for Mr. Burke, because there was no indication in Mr. Burke’s chart of any drainage from Mr. Burke’s wound. Vol. VI, N.T. 70, 221. Mr. Burke’s temperature reading of 99 degrees or 99.1 degrees was within the range of a person who had an operation of this magnitude. Vol. VI, N.T. 70. Dr. Northrup further testified that although Mr. Burke’s blood count was elevated, it would only be significant if it was in the range of 14,000 or 18,000 rather than 11,000, vol. VI, N.T. 71; accordingly, it was appropriate for the patient to go home. Vol. VI, N.T. 222.

III. LEGAL DISCUSSION

The plaintiffs have raised several issues in support of their motions for a new trial.

The decision whether or not to award a new trial lies within the sound discretion of the trial court. Coker v. S.M. Flickinger Co. Inc., 533 Pa. 441, 625 A.2d 1181 (1993). A new trial may be awarded if the trial court clearly and palpably abused its discretion or committed an error of law which controlled the outcome of the case. E.g., Stevenson v. General Motors Corporation, 513 Pa. 411, 521 A.2d 413 (1987); Eldridge v. Melcher, 226 Pa. Super. 381, 313 A.2d 750 (1973). When evidentiary rulings are the basis of the request for a new trial, the jury’s judgment will not be disturbed if it has not been shown that the rulings were harmful to the party complaining. Romeo v. Manuel, 703 A.2d 530 (Pa. Super. 1997); Childers v. Power Line Equipment Rentals Inc., 452 Pa. Super. 94, 681 A.2d 201 (1996).

After careful review of the trial rulings, the record reveals that the plaintiffs have been unable to establish a basis upon which a new trial should be ordered. Accordingly, the motions will be denied.

A. The Defendant Doctor Northrup’s Testimony Was Well Within His Scope of Knowledge and Experience

The plaintiffs contend that the jury should not have heard testimony from Dr. Northrap that Mr. Burke’s white blood count on August 23, 1991 was 7,000, “a normal white count,” vol. VI, N.T. 105; that Mr. Burke “had a normal platelet count” on August 23, 1991, vol. VI, N.T. 106; that if Mr. Burke had been at Jefferson Hospital on August 23, 1991, that the blood count and platelet count would most likely have been the same, vol. VI, N.T. 106; and that the most likely cause of Mr. Burke’s peripheral neuropathy (loss of sensation in his feet) in 1997 was diabetes. Vol. VI, N.T. 111-12; post-trial brief, pp. 11-13.

The theory asserted by the Burkes is that the defendant-doctor should have provided a written expert report before trial. Post-trial brief, p. 12:

“To the extent a defendant-physician’s opinion and knowledge are ‘acquired or developed in anticipation of litigation,’ and represent ‘the work product of a well-prepared litigant,’ the defendant must comply with Rule 4003.5.” See Neal by Neal v. Lu, 365 Pa. Super. 464, 530 A.2d 103 (1987).

The plaintiffs claim at page 13 of their brief and at post-trial argument that they were “surprised” by the testimony. Their claim, however, is unsupported in this record, which reveals that Ronald and Lisa Burke’s medical witnesses presented these issues for the jury’s consideration throughout their case in chief.

Dr. Raucher testified that a white blood count of 7,000 on August 23, 1991 was a “normal white blood cell count.” Vol. II, N.T. 147-48. Dr. Manders confirmed Ronald Burke’s diagnosis of diabetes, vol. Ill, N.T. 69; confirmed that on August 23, Mr. Burke had a normal temperature, normal white blood cell count and normal platelet count, vol. Ill, N.T. 77-78; and confirmed that even if Mr. Burke had remained at Thomas Jefferson University Hospital for several additional days, there was no evidence that the appearance of the wound would have deteriorated or that Mr. Burke would have been feverish while an inpatient. Vol. Ill, N.T. 82-83.

Mr. Burke’s treating physician in Indiana, Dr. Ayres, testified that Ronald Burke had endocrine problems as early as 1990, including Graves disease and glandular problems. He stated that diabetes was diagnosed in 1992. Ayres dep., N.T. 29, 53, 78, 85. This physician told the jury that the plaintiff suffered from ongoing polyneuropathy and parathesias (unusual and abnormal sensations in the extremities); that before the 1991 surgery Mr. Burke had trouble walking and had lost feeling in his feet, Ayres dep., N.T. 90-91, 133-35; and that while Dr. Ayres considered the possibility that the cause was Mr. Burke’s diabetes, Dr. Josephson, a neurologist in Indianapolis, believed the polyneuropathy and neuropathy was due to an unstable spine. Ayres dep., N.T. 46-47.

Significantly, both plaintiffs’ expert, Dr. Manders, and the defense expert, Dr. Long, agreed that when a patient is making a normal recovery, where the wound shows no signs of redness or draining, the patient should be sent home to avoid nosocomial infections (new infections acquired at the hospital). Vol. Ill, N.T. 83, 85; vol. V, N.T. 185.

The honorable Superior Court has recently reiterated that a physician who is a defendant may testify about his opinion and judgment on his own behalf without the filing of an expert’s report. The defendant-doctor’s testimony may include facts, opinions and inferences which are rationally based on the witness’ perceptions. Brady v. Ballay, Thornton, Maloney Medical Associates Inc., 704 A.2d 1076, 1082 (Pa. Super. 1997); Havasy v. Resnick, 415 Pa. Super. 480, 495, 609 A.2d 1326, 1333 (1992). Accordingly, when Dr. Northrup presented his testimony founded in part on the opinions of other experts, after listening to the testimony at trial and helpful to provide the jury with a clear understanding of his defense, there was no error. E.g., Tobash v. Jones, 419 Pa. 205, 213 A.2d 588 (1965); Brady v. Ballay, Thornton, Maloney Medical Associates Inc., supra; Butler v. Kiwi S.A., 412 Pa. Super. 591, 604 A.2d 270 (1992).

The triers of fact were aware that there were questions about the effect of Mr. Burke’s diabetes on his recovery, and questions about the post-discharge period in Indiana. Thus, Dr. Northrup’s testimony did not prejudice the plaintiffs nor present new information to the jury.

The Burkes also contend that their cross-examination of the defendant-doctor was improperly limited when an objection was sustained, thus precluding comments about a footnote in a 1995 article written by Dr. Northrup.

At trial, vol. VI, N.T. 179-80, the plaintiffs sought “to impeach the doctor’s credibility” by referring to an article, cited in Dr. Northrup’s footnote, which was written in 1993 by two members of the department of pharmacology at the University of Kentucky. The pharmacologists commented that antibiotic “readministration” during certain operations exceeding three hours was recommended.

At this post-trial juncture, the plaintiffs set forth a new and expanded basis for a new trial. That is, that the 1993 article, which related to a different type of spinal surgery, would have demonstrated that Dr. Northrup deviated from the standards of care in antibiotic administration in operations other than Mr. Burke’s. Post-trial brief, p. 9:

“Dr. Northrup testified that his rate of wound infection with respect to the laminectomy he performed on Mr. Burke was 2-3 percent. (N.T. 6/11/98 p. 69.) He acknowledged on cross-examination that his risk of infection with respect to the type of surgery discussed in the referenced article was a fraction of that, about 1/2 percent. (N.T. 6/11/98 p. 177.) Plaintiffs’ counsel wanted to show that even for the latter, less invasive surgery, the recommended standard was nonetheless to give a repeat dose of Ancef every three hours and, therefore, Dr. Northrup’s practice of not giving a repeat dose of Ancef even when performing a laminectomy could not represent the standard of care.

“This would have impeached Dr. Northrup’s testimony and credibility in general, and, more specifically, with respect to whether his practice is still the standard of care today (N.T. 6/11/98 p. 28) and with respect to whether the antibiotic regimen used in operating upon Mr. Burke ‘is . .. the majority view (N.T. 6/11/98 p. 104).’”

The burden of the plaintiffs in this litigation was to establish a deviation by Dr. Northrup in a 1991 neurosurgical procedure performed in Philadelphia on Ronald Burke. It was not whether in 1993 or 1995 or 1998 the physician administered intraoperative doses of an antibiotic for a different, less invasive surgery. The record clearly reveals that the plaintiffs questioned Dr. Northrup in their case in chief, and again had full and fair opportunity to extensively cross-examine the defendant. Vol. IV, N.T. 174-76; vol. VI, N.T. 160-228, 231-33.

B. In the Absence of Direct or Circumstantial Evidence That Dr. Northrup Could Not Understand the Hospital Chart in 1991, His Negligence Cannot Be Inferred

At trial, the court granted a motion for nonsuit and held that the fact that the nurses listed the patient’s medications in the daily hospital notes and not on the medication chart was not evidence of negligence by the defendant-hospital in the absence of expert testimony linking this deviation of the standard of charting to any harm to Mr. Burke. Vol. VI, N.T. 135-38, 143-50, 155-59; Hoffman v. Mogil, 445 Pa. Super. 252, 665 A.2d 478 (1995).

During the charging conference and prior to closing arguments, the court ruled that the nurses’ conduct could not be used to infer or suggest negligence by Dr. Northrup. Vol. VII, N.T. 54-55.

Even at this juncture, the plaintiffs are not able to point to any evidence that in August 1991, Dr. Northrup was unaware of Mr. Burke’s medications or that he was unable to locate the information in the hospital chart.

Notwithstanding the absence of direct or circumstantial evidence relating to 1991, the plaintiffs’ contention for new trial is based on their position that because at deposition proceedings after 1993, and at the 1998 trial, certain witnesses did not promptly locate Mr. Burke’s medication information in the hospital records, then this “was important circumstantial evidence that [in 1991] Dr. Northrup did not know what was going on with Mr. Burke and negligently discharged him in the face of a developing infection.” Reply brief, p. 7; plaintiffs’ post-trial brief, p. 6; vol. VI, N.T. 147-49.

The brief of the defendants exhaustively and appropriately covers this issue at pages 5 through 17, and is adopted by this post-trial court. This court declines to presume, or accept as true, inferences that are speculative, unwarranted or argumentative. Hoffman v. Mogil, supra at 257, 665 A.2d at 481, citing Greer v. Bryant, 423 Pa. Super. 608, 621 A.2d 999 (1993).

C. The Jury Charge Conformed to the Law and the Evidence

These plaintiffs next contend that the jury should not have been charged with Pennsylvania Suggested Standard Civil Jury Instruction 10.04, “Differing schools of thought doctrine”; vol. VII, N.T. 186-87. The post-trial memorandum is limited to whether Dr. Northrup’s decision to give a second dose of antibiotics at about 7:30 p.m. on August 8, 1991 was properly the subject of this jury instruction. Specifically, the Burkes allege that the defendant did not provide adequate factual support for the defense that a considerable number of professionals agree with Dr. Northrup’s method of treatment. Post-trial brief, pp. 10-11; reply brief, pp. 12-15. The record does not support this argument.

On August 8,1991, Dr. Northrap administered a preoperative dose of Ancef, an antibiotic, at about 10:45 a.m. The operation lasted about six hours, from about 12:30 p.m. to 6:30 p.m. The next dose of Ancef was given to Mr. Burke at about 7:30 p.m. Vol. V, N.T. 175-81.

Both of plaintiffs’ experts testified to one school of thought, which was that the second dose of antibiotics should be administered during the surgery itself, “while the wound is still open,” (Raucher) Vol. II, N.T. 113; “when the bugs are going to get in there.” (Manders) Vol. Ill, N.T. 38-40.

Dr. Northrap and his experts testified about a second school of thought, which was that as long as the second dose of antibiotics was administered within eight hours after the first dose there was no requirement that the operation be ongoing. Vol. V, N.T. 70, 139-44, 151-52, 179-81; vol. VI. N.T. 46-49. 103-104.

The case law is clear that a trial court may not make it burdensome on a defendant-doctor to provide the factual reasons to support his claim that there are a considerable number of professionals who agree with the treatment employed by the defendant. E.g., Jones v. Chidester, 531 Pa. 31, 610 A.2d 964 (1992).

In Gala v. Hamilton, 552 Pa. 466, 472, 715 A.2d 1108, 1111 (1998), the Supreme Court held that, “limiting evidence . . . would have the effect of preventing expert witnesses from testifying to the existence of a school of thought based on their experience as practitioners and on information they obtained during their medical training and while attending lectures and other educational programs sponsored by institutions and professional societies.”

In Romeo v. Manuel, 703 A.2d 530 (Pa. Super. 1997), as in the instant case, the defendant-doctor himself testified about a second school of thought relating to a cardiac treatment. The appellate court agreed that his testimony was relevant and appropriate.

Dr. Northrup provided the factual basis for his opinion that there is an eight-hour window for the second dose. He explained this opinion was shared by medical people he spoke to, specifically at conferences with neurosurgeons, bacteriologists and hospital epidemiologists. He and the pharmacologists considered the “pharmacodynamics” of Ancef. Vol. VI, N.T. 46-48. Further, he has conferred with other specialists in his field at meetings and conferences. Vol. VI, N.T. 103-104.

Dr. Ingerman referred to medical literature preferred by the plaintiffs as one basis for his opinions. Vol. V, N.T. 152. Dr. Long’s expertise in the field of neurosurgery, and in particular the standard of care in the manner in which antibiotic prophylaxis should be used during Mr. Burke’s surgery, was not challenged by the plaintiffs. Vol. V, N.T. 169.

The trial court heard extensive oral argument at vol. VI, N.T. 75-103; vol. VII, N.T. 19-25. Dr. Northrup and the other two experts provided sufficient factual basis to warrant an instruction to the jury on two schools of thought. It was up to the jury to determine whether the defendant met his burden of proof. Gala v. Hamilton, supra; Sinclair by Sinclair v. Block, 534 Pa. 563, 633 A.2d 1137 (1993).

Finally, the plaintiffs now object that in response to a jury question during deliberations, the trial court re-read the same instruction it had earlier been read to the jurors.

At vol. VII, N.T. 202-203, the question was read to counsel:

“Your honor, would you please restate the third charge of negligence? One, antibiotic use. Two, time of discharge. Three, question mark.”

Plaintiffs’ counsel and the court agreed that the only portion of the initial jury charge which “actually got into . . . one, two and three,” was the two schools of thought charge. Vol. VII, N.T. 203. Accordingly, the court determined that the same language which earlier had been very carefully crafted by both attorneys, vol. VII, N.T. 24-27, would be read to the jury in response to their question.

When the attorney for the Burkes suggested that other, additional aspects of the case should be commented on by the court, the defense objection was sustained. The trial court did agree, however, that if the jury asked for further information, then it would be provided. Vol. VII, N.T. 206-207. It was clear that the jury was not seeking supplemental information at that point.

The Commonwealth Court has noted in Smick v. City of Philadelphia, 161 Pa. Commw. 622, 631, 638 A.2d 287, 291 (1994):

“Where a jury returns on its own motion and indicates confusion, the court has the duty to give such additional instructions on the law as the court may think necessary to clarify the jury’s doubt or confusion. Worthington v. Oberhuber, 419 Pa. 561, 215 A.2d 621 (1966).This rule commits to the sound discretion of the trial judge the scope of such additional instructions as he or she decides to give to a jury that has expressed confusion. Mendenhall v. PennDOT, 113 Pa. Commw. 550, 537 A.2d 951 [1988], appeal denied, 520 Pa. 610, 553 A.2d 971 (1988).”

In the Burkes’ case the trial court confined the additional instruction to the precise question posed by the jury, believing that such instruction answered the jury’s inquiry. Valentine v. Acme Markets Inc., 455 Pa. Super. 256, 264, 687 A.2d 1157, 1161 (1997).

IV. CONCLUSION

A new trial is appropriate if, after a careful review of the entire record, there has been a manifest abuse of the trial judge’s discretion or clear error of law which controls the outcome of the case. This record reveals no basis for a new trial.

For all of the reasons set forth in this memorandum of law, the plaintiffs’ motions for a new trial are denied.

ORDER

And now, May 7, 1999, after consideration of plaintiffs’ motions for a new trial and responses thereto, and after oral argument, and for the reasons set forth in the memorandum of law filed by the court this date, it is hereby ordered that the motions are denied.

Judgment shall be entered in favor of Bruce Northrup M.D. and Thomas Jefferson University Hospital.

      . In the midst of plaintiffs’ case in chief, the plaintiffs took a voluntary nonsuit against Richard A. Balderston M.D. The trial continued against Dr. Northrup and Jefferson Hospital.

      . In fact, this jury learned from the plaintiffs’ expert, Dr. Manders, that after the April 1990 automobile accident and before this August 1991 surgery, Ronald Burke had “extensive treatments for reflex sympathetic dystrophy.” This disease causes patients to complain about “swelling, tingling, numbness,” usually involving an extremity. “The normal pain recovery doesn’t occur.” Vol. III, N.T. 27-28. Plaintiffs’ evidence added yet another possible cause for Ronald Burke’s problems. See Brady v. Ballay, Thornton, Maloney Medical Associates Inc., 704 A.2d 1076, 1083 (Pa. Super. 1997) (holding that in the absence of unfair surprise, it is up to the jury to weigh conflicting expert testimony).