author: LASH, J,

text:
    Mandolos v. Tregembo

      Jacqueline R. Mark, for plaintiff.

      Lynn Erickson, for defendant.
    February 13, 2009
   LASH, J,

This court held a child custody trial on February 10, 2009. At issue is whether defendant, Scherie Tregembo (Mother), who intends to move to Florida, should be permitted to retain primary custody of the parties’ minor child. We enter the following findings of fact:

I. FINDINGS OF FACT

(1) Plaintiff, Gustav Mandólos (Father), is an adult individual who currently resides at 2443 Leisczs Bridge Road, Reading, Berks County, Pennsylvania 19605.

(2) Defendant, Scherie Tregembo, is an adult individual who currently resides on Penn Bern Road in Bemville, Berks County, Pennsylvania 19506-8249.

(3) The parties are the natural parents of Madison Mary Mandólos, bom August 14, 1996 (minor child).

(4) Father currently resides in the home of the paternal grandmother, Janet Mandólos, occupying the lower level of the house. Father has a steady girlfriend, Brieane Botwright, who spends a good deal of time at Father’s residence, including some overnights, but maintains a separate residence in the house of her grandparents.

(5) Mother currently resides with the minor child and some friends on a temporary basis. Until January 1,2009, she and the minor child resided next door at 89 Penn Bern Road, Bemville, Berks County, Pennsylvania. However, she decided not to renew the lease, based on her decision to move to Florida. The lease expired at the end of December 2008. Her next door neighbor, William, agreed to allow her and the minor child to stay in a bedroom at his home, pending disposition of this case. In accordance with this plan, Mother also sold some of her possessions and furniture.

(6) Mother intends to move to Nokomis, Florida, near Sarasota, with the minor child. Her plan is to reside with her niece, Tanya, and Tanya’s two children, ages 5 and 2, for a six to 12-month period, until she finds suitable housing for her and the minor child.

(7) Tanya resides in the Laurel Nokomis School District. Mother intends to obtain housing in the same school district.

(8) Father resides in the Schuylkill Valley School District. From the time she first started school until the present, the minor child has always been enrolled in the Schuylkill Valley School District. Currently, and at all times, Mother also resided in the Schuylkill Valley School District.

(9) The parties are formerly husband and wife, having married in 1999. The parties resided together approximately 10 years before the marriage and continued residing together until approximately September 1, 2006, when Mother left the marital residence. The parties remained separate and apart, except for a brief period of four to six weeks in August/September 2007, when the parties attempted to reconcile. At this time, no divorce has been granted.

(10) Since the date of the parties’ separation, the minor child has resided with Mother as primary custodian. On February 12, 2007, by agreement of the parties, the court entered a temporary order setting forth, among other things, that the parties would share legal custody, Mother would have primary physical custody, and Father would have partial physical custody every Wednesday after school to 8 p.m. and every other weekend commencing Friday after school to Sunday at 6 p.m.

(11) On May 29,2007, upon agreement of the parties, a final order was entered, maintaining the same schedule.

(12) On or about November 5, 2008, Mother filed a petition for special relief in the nature of a petition to permit her to relocate and to modify the custody order. Father opposes the move, resulting in this matter being set down for trial.

(13) Mother is currently employed part-time for S&G Auto Recycling, doing handiwork, working approximately 10 hours a week. She also receives a monthly check for the minor child from the Social Security Administration, due to Father’s disability.

(14) Mother has not worked full-time since the birth of the minor child, working part-time at different jobs, including clerical work, bartending, and as self-employed in her home remodeling and home improvement business known as “Jill of All Trades.”

(15) Mother was diagnosed in April of 2008 with vulvar cancer. She had surgery for the condition. She currently is under no treatment, but is examined every three months to determine whether further treatment is necessary.

(16) Father is disabled based on an injury to his back that he suffered while working at age 16. He continued to work as a sign erector for several years thereafter, but eventually, the condition worsened and he is now unable to work. As a result, he receives Social Security disability. Father is prescribed morphine, Tylenol and muscle relaxants for his back condition. Father also suffers from diabetes and takes medication for that condition.

(17) Father has been hospitalized on several occasions with pancreatitis. He admits that he has had issues with drug and alcohol abuse, resulting in his doctor advising him that he needed to cease the substance abuse immediately. Although he did not initially heed the doctor’s advice, he states he is now clean since November of 2008.

(18) If Mother relocates to Florida, she has been promised a full-time job from her brother, Rodney Tregembo, who owns parking garages and a valet business. She would be employed Monday through Friday from 8 a.m. to 4 p.m.

(19) The home in Florida, which Mother and the minor child would share with Mother’s niece and her family, is a four-bedroom home in a nice neighborhood. Mother and the minor child would each have her own bedroom.

II. DISCUSSION

In making disposition, this court considered the testimony of the parties, the paternal grandmother, Janet Mandólos, Father’s sister, Connie Brooks, Father’s paramour, Brieane Botwright, the in camera testimony of the minor child, and the exhibits of the parties.

As stated, Mother wants to move to Florida and is asking that she be permitted to retain primary custody of the minor child. Her proposal is that Father have custody during the summer months and during the minor child’s Christmas and spring breaks from school. Additionally, the minor child would be permitted to come to Pennsylvania for extended weekends. Mother states she has investigated and is satisfied that the minor child can fly round trip for less than $100, a very reasonable cost under the circumstances.

Mother provides several reasons for her decision to move. First, all of her closest relatives have moved to Florida. In contrast, in Pennsylvania, she has no one to assist her other than a few friends. This is important because she must provide care for the minor child and maintain employment. She states she receives no financial assistance from Father and little from the paternal grandmother. Additionally, the spectre of her cancer diagnosis is still present.

She would also be able to work full-time in Florida. Although she has attempted to find full-time employment in Pennsylvania, she has been unsuccessful. In Florida, she would work for her brother and would be guaranteed a position on a full-time basis for $15 an hour. She believes that this would be more than sufficient for her to maintain a separate residence for herself and the minor child.

She believes that the minor child has a strong preference to live in Florida. The minor child loves the beach and dislikes the winters in Pennsylvania. Additionally, the minor child has a strong interest in becoming a marine biologist. Near her proposed residence is a marine research laboratory, where the minor child could do volunteer work, eventually obtain a paying job, and potentially earn a scholarship, while pursuing her passion.

Mother states that she has always been the primary caretaker of the minor child, whether the parties were living together or apart. She oversees the minor child’s schooling and medical care. She has always handled the day-to-day maintenance for the minor child. On the other hand, Father has been very little help to Mother. He spends a great deal of time sleeping and provides very little supervision. Mother states that for a month in September 2008, while she worked as a bartender and had to maintain late hours at her employment, the minor child stayed overnight at Father’s house, and it was Father’s responsibility to get the minor child up for school. According to Mother, Father was unable to do this on a consistent basis, resulting in the minor child being late for school on several occasions. Mother also testified that she has had to hire a baby sitter when she was unavailable during the day to care for the minor child, even though Father and the paternal grandmother were available, because of their disinclination to take over these duties.

Mother states Father is involved in abusing drugs and alcohol. He drinks excessively and, according to Mother, has even bragged about it on a “My Space” website. He has been hospitalized for pancreatitis on numerous occasions, resulting from his substance abuse, and despite being warned by the doctor, has maintained his poor habits. According to Mother, Father, on one occasion, attempted suicide, resulting in him spending a few hours in the psychiatric ward in St. Joseph’s Hospital.

Father and his family believe the move to Florida would not be in the minor child’s best interest. They believe that this would result in a lack of stability. For one, the minor child would be removed from the area she grew up in and the school she has always attended. She would lose contact with her friends. Secondly, Father opines that Mother and her family do not get along. He questions whether Mother’s brother would, in fact, provide her with a job. We note, however, that Father reaches this opinion, despite having no contact with Mother’s brother for approximately five years, and limited contact with any of Mother’s family.

Both Father and the paternal grandmother testified that they had grave concerns that they would never get to see the minor child again if the minor child resided in Florida. This concern exists, even though a court order would require otherwise. Father states that Mother has denied him visits in violation of the current custody order. However, he has not pursued contempt of court proceedings because he could not afford to do so.

Father denies that the minor child has a strong interest in moving to Florida. He also believes that whatever interest she has in Florida is an interest in enjoying the beach, not an appropriate reason. The minor child has had some issues in school, primarily in math. Father opines that she would not be a serious student in Florida. However, Father was unable to be specific on the minor child’s problems with school, as it appears that Mother correctly set forth that Father’s involvement with the minor child’s educational needs are minimal.

Father denies that he was responsible for the minor child being late for school, or that he sleeps an inordinate amount of time. He does sleep during the day, but only for one-hour naps, predominately because of the effects of his medication. Further, he sometimes has difficulty with his sugar level from the diabetes, which can cause him to become ill. He denies a suicide attempt.

Father testified that he has a wonderful relationship with the minor child, spending a great deal of time with her on matters that she enjoys. He states that he does help her with school work, including her art work. He says she enjoys spending time in the summer at the in-ground pool located on his mother’s premises.

Father also avers that Mother has issues with credibility. He alleged that she has forged checks in his name and has stolen money from a Merrill Lynch account in the amount of $50,000, which he received through a lump sum settlement award for his disability. Mother denies this, stating that Father authorized her to sign checks to obtain funds for various items Father or the parties wanted during the prior time the parties resided together.

The fundamental issue in all custody cases is the best interest of the child. Richards v. Hepfer, 764 A.2d 623 (Pa. Super. 2000). A determination of what is in the best interests of a child is made on a case-by-case basis and must be premised upon consideration of all factors which legitimately have an effect upon a child’s physical, intellectual, moral and spiritual well-being. Alfred v. Braxton, 442 Pa. Super. 381, 385, 659 A.2d 1040, 1042 (1995).

In the case of Gruber v. Gruber, 400 Pa. Super. 174, 583 A.2d 434 (1990), the Pennsylvania Superior Court established the following factors for the trial court to consider on relocation matters:

“(1) The potential advantage of the proposed move, economic or otherwise, and the likelihood the move would improve substantially the quality of life for the custodial parent and the children and is not the result of a momentary whim on the part of the custodial parent; (2) The integrity of the motive of both the custodial and non-custodial parent in either seeking the move or seeking to prevent it; and (3) The availability of realistic, substitute arrangements which will adequately foster an ongoing relationship between the child and the noncustodial parent.” Richard v. Hepfer, supra at 626. (internal quotations and citations omitted)

In examining the potential advantages of the proposed move and whether the move would substantially improve the minor child’s quality of life, we note the opinion of the Superior Court in Billhime v. Billhime, 869 A.2d 1031 (Pa. Super. 2005), which is similar in several respects to this case. In Billhime, the mother, the primary custodian, also requested a move to Florida. Two primary reasons for the court’s granting the request included Mrs. Billhime’s ability to obtain full-time employment and to live close to a network of family and friends. Regarding her employment, Mrs. Billhime had obtained a job offer in the customer service department of a car dealership at $11 per hour with good benefits and a flexible schedule. Also, Mrs. Billhime had difficulties securing full-time employment in the proximity of her rural Pennsylvania home. The court found that the job offer provided her with the opportunity to become a financially independent single parent. The flexibility and benefits would “quite likely .. . contribute to her well-being and general happiness and, thereby, benefit the children’s best interests.” Id. at 1038. Additionally, the court found that Mrs. Billhime and the children would enjoy the support of their extensive network of family and friends in Florida, while Mr. Billhime’s extended family was “far less cohesive and minimally involved with the children.” Id. at 1038-39.

Similarly, Mother would also be able to enjoy a stronger economic foundation. Her proposed job appears to be very secure, as her brother would be her employer. Likewise, this would permit her to have flexible hours. Her proposed schedule of 8 a.m. to 4 p.m. would enable her to be available when the minor child is finished with school. This contrasts with her current employment history, which consisted of obtaining part-time jobs here and there for the purpose of attempting to make ends meet while also retaining available time for the care and maintenance of the minor child. Father, though available, never ventured into assuming full-time caretaking responsibilities, which also impacts on Mother’s difficulties here.

The family network is also important. Since mother’s sister recently moved to Florida, all of Mother’s family is now residing there. Mother, who is attempting to maintain independent living as a single mother, and who continues to process her current existence as a cancer survivor, can use as much support as possible. Unfortunately, she does not receive this support from Father. While Father asserts Mother is not close to her family, this assertion was without any corroboration and appears to be self-serving. The evidence suggests otherwise, particularly regarding Mother’s niece and family with whom she would reside, as well as her brother and sister. The paternal grandmother and Father’s sisters do have a positive relationship with the minor child, but this is compromised somewhat by difficulties between Mother and the paternal grandmother. In any event, the move to Florida, with the proposed schedule, with the minor child residing in Pennsylvania during the summer, would provide the minor child with access to both sides of the family on an ongoing basis.

We also believe that the quality of life would be improved for the minor child because of her preference for Florida and her passion for the water and marine life. The minor child’s enthusiasm should be fostered, not restricted. While the express wishes of a child are not controlling in custody decisions, such wishes do constitute an important factor that must be carefully considered in determining the child’s best interest. Ketterer v. Seifert, 902 A.2d 533 (Pa. Super. 2006). Although we agree with Father that the opportunity to reside in a warm climate with a beach may be a strong motivator to a minor child in weighing a decision on where to reside, here, we find the minor child’s interests to be of a wider scope. She is eagerly looking forward to the opportunity to work in a marine laboratory. She also wants to spend extensive time with Mother’s side of the family. Amove to Florida will give her the chance to thrive in an environment she thoroughly enjoys.

On the second test of Gruber, the integrity of the motives of the parties in maintaining their respective positions, we find that both parties are sincere. Mother has witnessed her family members, one by one, moving to Florida. She wants to join them. She also wants the opportunity to work full-time and maintain a decent household for her and her daughter. Since the separation, Mother has struggled. For a short time, she and her daughter resided on air mattresses in an apartment Mother had rented. Eventually, she was able to make ends meet sufficient to purchase furniture, which she bought secondhand. She has done what she could with what she had. In Florida, her means and, therefore, her standard of living would increase. Secondly, Mother’s plan regarding Father spending time with the minor child is appropriate. Mother does not appear to have any intention of depriving Father of extensive time with the minor child. For his part, Father has valid reasons for wanting the minor child to remain in Pennsylvania. For one, there is the continuity of keeping the minor child in the neighborhood and in the school district she has known. There is family support on Father’s side for the minor child. Additionally, because of the distance, and because the parties have not gotten along in the past, Father’s concern that there could be issues in actually seeing the minor child cannot be dismissed as mere paranoia.

The final test of Gruber, the availability of realistic, substitute visitation arrangements, are met. Like the Billhime case, Mother has proposed that the minor child reside with Father in the summer and visit with him during the Christmas and spring breaks, as well as other times. She is willing to permit the minor child to fly alone to visit Father. The minor child, likewise, has no apprehensions about this arrangement. The costs cited by Mother are very reasonable. As the Superior Court did in Billhime, we find the substitution arrangements to be realistic and appropriate.

On balance, the best interests of the minor child would be to retain Mother as the primary custodian. Mother has established herself as a parent who is willing to be industrious and make the necessary sacrifices for her minor child. She clearly has performed the lion’s share of the requisite custodial duties. Father, on the other hand, has not established that he is prepared to take over full-time custodial duties of a minor child who is about to enter her teenage years, particularly during school months, where it is critical that her studies be overseen. On the other hand, Father does maintain a positive relationship with the minor child, which can continue to be fostered during extensive time in the summer months.

Because of the strained relationship of the parties, and Father’s concern that the order will be violated, this court emphasizes the importance that this order shall be strictly followed, except if the parties agree otherwise. If there is such an agreement, the agreement shall be in writing to ensure that there is no miscommunication. However, if one party is denied access to the minor child through improper actions by the other party, that would be a basis for finding the violating party in contempt of court, and could result in a review of this custody order.

We enter the following order:

ORDER

And now, February 13,2009, after trial held, custody of the parties’ minor child, Madison Mary Mandólos, bom August 14, 1996, shall be as follows:

(1) The parties shall share legal custody of the minor child.

(2) Defendant, Scherie Tregembo (Mother), shall have primary physical custody of the minor child during the school year. The school year is defined as commencing one week prior to the start of the minor child’s school term and ending one week after the conclusion of the school term.

(3) Plaintiff, Gustav Mandólos (Father), shall have physical custody of the minor child during the summer months.

(4) The minor child shall be permitted to visit with Father during her Christmas break and spring breaks from school. Regarding the Christmas break, on odd-numbered years, the minor child shall travel to Father’s home prior to Christmas Day and remain there until one day prior to the commencement of school; on even-numbered years, the minor child shall travel to Father’s home on December 26 and remain there until one day prior to the commencement of the school term. The minor child shall leave one day after the break starts and return one day prior to the end of the break. The costs for the transportation shall be split evenly by the parties.

(5) Father may have partial custody time with the minor child, at such other times as the parties may agree. If the minor child travels to Pennsylvania at other times, the costs again shall be shared. If Father travels to Florida for a visit, Mother shall make appropriate arrangements to provide Father with time with the minor child outside the presence of Mother.

(6) The non-custodial party shall have reasonable telephone calling privileges with the minor child. Each party shall see to it that the minor child has a cell phone available to receive calls from the non-custodial party. Additionally, contingent upon whether the parties can afford to do so, the parties may utilize a web cam through a computer to enable the non-custodial party to visit with the minor child visually.

(7) The attached appendix shall be made a part of the within order.

APPENDIX TO ORDER

Certain rules of conduct which generally apply to custody matters are set forth below and are binding on both parties, the breach of which could become the subject of contempt proceedings before this court, or could constitute grounds for modification of this order. If these general rules conflict with any specific provisions of the order, the order shall prevail.

(1) In addition to the foregoing rights, both parties shall also have the following rights with respect to the child:

(A) The right to reasonable telephone contact with the child when he or she is in the other parent’s custody.

(B) The right to be fully informed concerning the progress of the child in school and the child’s medical status, including the right to obtain the necessary information directly from the child’s school or medical practitioner; and

(C) The right to be informed in advance before any important decisions are made concerning the child and the opportunity to participate in those decisions.

(2) In the event of any serious illness of the child at any time, any party then having custody of the child shall immediately communicate with the other party by telephone or by any other means, informing the other party as to the nature of such illness, and during such illness, each party shall have the right to visit the child as he or she desires consistent with the proper medical care of the child.

(3) Neither party shall alienate nor permit to attempt to alienate the child from the other party. While in the presence of the child, neither parent shall make any remarks or do anything which is derogatory or uncomplimentary to the other and it shall be the duty of each parent to uphold the other parent as one the child should respect and love.

(4) Both parties shall provide each other with their addresses and telephone numbers of their residences and anytime they take a trip with the child out of the jurisdiction of Berks County in excess of three days.

(5) The parties shall not conduct arguments or heated conversation when they are together in the presence of their child.

(6) The parties shall, at all times, consider the children/ child’s best interests, and act accordingly. It is in a child’s best interest to understand that he or she is trying to desperately cope with the fact of his or her parents’ separation, and needs help in loving both parents, rather than interference or censure.

(7) Neither party shall question the child as to the personal lives of the other parent except insofar as necessary to insure the personal safety of the child. By this we mean that the child will not be used as a spy on the other party. It is harmful to a child to be put in the role of spy.

(8) The parties should remember that they cannot teach their child proper moral conduct by indulging in improper conduct themselves. Children are quick to recognize hypocrisy, and the parent who maintains a double standard will lose the respect of his or her child.

(9) Weekend and evening visitation shall be subject to:

(A) Arrangements will be worked out beforehand between the parties without forcing the child to make choices and run the risk of parental displeasure. However, the child shall be consulted as to his or her schedule when appropriate.

(B) Visitation rights shall be exercised at reasonable hours and under circumstances reasonably acceptable to the other party and to the need and desire of the minor child.

(C) If a party finds himself or herself unable to keep an appointment, he or she should give immediate notice to the other party, so as to avoid subjecting the child to unnecessary apprehension and failure of expectations.

(D) The party having custody of the child should prepare him or her both physically and mentally for the transfer of custody to the other party and have him or her available at the time and place mutually agreed upon.

(E) If either party or a child has plans which conflict with a scheduled visit and wish to change such visitation, the parties should make arrangements for an adjustment acceptable to the schedules of everyone involved. Predetermined schedules are not written in stone, and both parties should be flexible for the sake of the child.

(F) If a party shows up for a visit under the influence of alcohol or drugs, the visit may be considered forfeited on those grounds alone.

(10) If either party feels the other party has violated this order, they may petition the court as set forth in Pa. R.C.P. 1915.12.


source: Caselaw Access Project

author: FURBER, J.,

license: Public Domain

text:
    Commonwealth v. O’Donnell

      Patricia Coonahan, for Commonwealth.

      Thomas C. Egan III, for defendant.
    April 28, 2009
   FURBER, J.,

On June 5,2008, at the conclusion of a non-jury trial that began on May 27, 2008, we found the defendant, Mark Patrick O’Donnell, guilty of first-degree murder, two counts of involuntary deviate sexual intercourse, indecent assault, tampering with evidence, abuse of a corpse, and possession of drugs and drug paraphernalia. We found him not guilty of possession with intent to deliver. Following a penalty hearing we decided on a term of life imprisonment for the first-degree murder conviction. On January 8, 2009 we formally imposed the life sentence, followed by consecutive terms of 10 to 20 years and one to two years imprisonment. Mr. O’Donnell filed his appeal to the Superior Court on January 16, 2009.

We directed him to file a statement of errors complained of on appeal, and, upon review and a determination that the statement filed was too general to define the issues presented, ordered defendant to file a supplemental statement. He filed that document within the time allowed.

Defendant asserts on appeal that the evidence was insufficient to sustain convictions of first-degree murder and involuntary deviate sexual intercourse, or, in the alternative that those verdicts were against the weight of the evidence. With regard to first-degree murder he states:

“The appellant asserts the evidence was insufficient given the testimony of the psychiatrists, the undisputed intoxication of the appellant, the circumstances of the offense, the lack of premeditation, the lack of specific intent to kill, and the utter void of any prior problems between the deceased and the appellant.”

With regard to the weight of the evidence:

“The appellant asserts that the credible testimony presented in the trial should have led the fact-finder to conclude that the appellant was clearly intoxicated, and, such intoxication prevented him from forming the mens rea necessary for first-degree murder.”

As to involuntary deviate sexual intercourse, the same reason is given for both sufficiency and weight:

“The appellant asserts that evidence was insufficient given the complete lack of any forensic evidence linking the appellant to a sexual assault, the lack of any implement which was used or could have been used by the appellant for the sexual assault, the presence of Caucasian hairs on the deceased lips when the appellant is African American, and the clear expert testimony that the sexual activity could have occurred prior to the appellant’s arrival at the apartment.”

In Commonwealth v. Vandivner, 599 Pa. 617, 962 A.2d 1170 (2009), the Supreme Court held that when reviewing a claim the evidence is insufficient, the court must consider the evidence in the light most favorable to the Commonwealth to determine if the evidence and all reasonable inferences are sufficient to establish the elements of the offense beyond a reasonable doubt. 599 Pa. at 627, 962 A.2d at 1176. A claim the verdict is against the weight of the evidence will be upheld only when the conviction is so contrary to the evidence as to shock one’s sense of justice. 599 Pa. at 630, 962 A.2d at 1177-78; Commonwealth v. Charlton, 902 A.2d 554, 561 (Pa. Super. 2006), allocatur denied, 590 Pa. 655, 911 A.2d 933 (2006). Whether a defendant’s faculties and sensibilities were so overwhelmed with drugs that he could not form the specific intent to kill is a question of fact solely within the province of the trier of fact, who is free to believe any, all or none of the testimony regarding intoxication. Commonwealth v. Vandivner, 599 Pa. 617, 628-29, 962 A.2d 1170, 1177 (2009). The evidence need not preclude every possibility of innocence, Commonwealth v. Andrulewicz, 911 A.2d 162, 165 (Pa. Super. 2006), allocatur denied, 592 Pa. 778, 926 A.2d 972 (2007), nor exclude all possibility that a third party may have committed the crime. Commonwealth v. Akers, 392 Pa. Super. 170, 181, 572 A.2d 746, 751 (1990).

The evidence led us to conclude, beyond a reasonable doubt, that the defendant committed involuntary deviate sexual intercourse on 14-year-old Ebony Dorsey by inserting a cylindrical object into her vagina and into her anus. We also decided that Mr. O’Donnell did not lack the capacity to form the specific intent to kill Ebony due to cocaine intoxication.

The evidence showed that Ebony Dorsey died in the very early morning hours of December 7, 2007. Her mother, Daniele Cattie, and the defendant had a relationship based on sex and drugs. They regularly engaged in intercourse, including anal sex, and used cocaine together. Mr. O’Donnell enjoyed pornography and liked to view scenes of anal intercourse over and over.

On December 6,2007 the defendant asked that Ebony babysit his daughter, Kyra, in the apartment of his estranged wife, Tameika O’Donnell. When Ms. Cattie returned to her home in Ambler around midnight from her bartending job, defendant was there with six $20 bags of cocaine. She asked why Ebony and Kyra were not at her house, and Mr. O ’Donnell explained he wanted Kyra to be in her own bed.

He and she split the cocaine. Ms. Cattie snorted hers, and defendant cooked and then smoked his. During the night they played backgammon and watched some pornography, but did not engage in any form of sexual intercourse. Several hours after they used up the cocaine, around 5:30 a.m., Ms. Cattie asked Mr. O’Donnell to pick up Ebony so she could go to school.

Ms. O’Donnell, who traveled frequently on business and was due to return home on December 7, 2007, explained she kept a computer in her apartment. It had a guest account she let relatives and visitors use. A forensic examination of that computer showed that it was used on and off from about 10 p.m. on the night of December 6 until 1:50 a.m. on December 7. During that time it was used for MySpace activity, chat and looking at celebrity photographs, activity typical of a teenager. No pornography was viewed during that time. Beginning at 5:39 a.m. on December 7, 2007 it was used to view pornography, including pictures of anal intercourse.

Defendant confessed that he killed Ebony Dorsey that morning in his wife’s apartment, asserting a fit of rage after he supposedly discovered Ebony engaging in inappropriate behavior with Kyra. He claimed not to remember the killing, but said that he “went off”, wrapped Ebony’s pajamas around her neck, and found himself with his knees on her shoulders facing her. In his statement he told the police Kyra complained that her vagina hurt after the killing. By the time he spoke to the psychiatrist retained on his behalf he changed the story to have Kyra complaining of this before the killing.

Defendant put Kyra in the bath tub, dumped his clothing from a blue plastic container, stuffed Ebony’s body inside, and took it outside near the dumpster. He gathered Ebony’s belongings into her backpack, and added money to make it appear he paid for baby-sitting. He loaded that and Ebony’s body into his car, threw the backpack into a dumpster at a gasoline station, and took Ebony to the home of his nephew, where he hid the container in a pile of leaves. What was a missing child investigation turned into a murder investigation when defendant’s nephew found this unusual pile of leaves on his property while walking his dog.

The autopsy revealed splits in Ebony’s anus and redness and abrasion of the back of her vulva consistent with penetration of both her anus and vagina with a cylindrical object. The medical examiner expressed the opinion that the use of an object was more likely than a penis, and based on that, and the lack of any foreign DNA inside Ebony, we conclude that an object was used to penetrate her. Bruising of her rectum on the right-hand side indicated there was blood circulation, so she was alive when her vagina and anus were penetrated. Death was due to blunt force trauma and strangulation, and the presence of fine perechial hemorrhages under the eyelids indicated that strangulation stopped and resumed before she died. Scratches on defendant’s hands consistent with Ebony’s braces also indicated a struggle. Defendant’s claim he just found himself with his knees on her shoulders, with her face up (supporting his denial of penetration from behind), is inconsistent with the abrasions of her jaw, showing she was pressed face down against a textured surface. The Caucasian hair was too small to test, and is of no moment because of the extensive involvement of white people after Ebony’s body was found.

When the defendant gave his statement he volunteered that he wanted the people to know there was nothing sexual about what happened. He said this without being informed that anything sexual had taken place. He strangled Ebony with her pajamas, which he would not have had to remove to kill her. While the object used to penetrate Ebony was never found, this did not raise a reasonable doubt in our mind that defendant used one. Defendant’s concern that people think nothing sexual occurred simply led him to dispose of this object in a different place, and not tell the police where he put it. Although others may theoretically have had access to Ms. O’Donnell’s apartment, unknown DNA and a tissue with blood of an unknown person was found, none of this led us to doubt that Ebony’s confessed killer, the defendant, engaged in deviate sexual intercourse with her using a foreign object, then strangled her with the pajamas he removed. A crime may be proven by wholly circumstantial evidence. Commonwealth v. Andrulewicz, 911 A.2d 162, 165 (Pa. Super. 2006), allocatur denied, 592 Pa. 778, 926 A.2d 972 (2007).

Defendant offered expert psychiatric testimony that, due to his cocaine use earlier in the day, he was incapable of forming the specific intent required to establish first-degree murder. We did not credit that testimony because (1) it was predicated on the assumption that defendant did not engage in involuntary sexual intercourse with Ebony, and (2) we found the testimony of the Commonwealth’s expert credible and supported by the facts:

Defendant played backgammon, a game requiring concentration and strategy, throughout the evening. He drove a route from Ambler to Plymouth Meeting that required multiple stops and turns, showing dexterity and memory. He found the right key and let himself into the apartment. He navigated to a number of different pornographic web sites on the computer over the course of about 10 minutes.

After defendant killed Ebony he admittedly engaged in a complex series of steps to put his daughter in the tub, dump his clothing from a container, stuff Ebony’s body into that container, take it to a place where he could load it into his car without being seen, and drive across the parking lot to that location. He added money to her backpack to suggest he paid Ebony for baby-sitting, and thus that she was alive when he left her. He disposed of the backpack in one place, a gasoline service station, and her body in another, his nephew’s property. All this shows consciousness and the ability to plan before and after the killing. Defendant was working deliberately to cover up both the killing he admitted and the sexual assault he continues to deny.

The expert called by the Commonwealth expressed the opinion that temporary blackouts are unusual with cocaine ingestion, and inconsistent with defendant’s conduct before and after the killing. The medical testimony, that strangulation started and stopped, and that it would have taken a minute or two of steady pressure for Ebony to lose consciousness, during which time defendant tied Ebony’s pajama bottoms around her neck and knotted them twice, shows consciousness and intent to kill during the killing.

In Commonwealth v. Brown, 551 Pa. 465, 711 A.2d 444 (1998), the court held evidence that the 3-year-old victim’s body was secreted in an elevator shaft of an abandoned housing project, with bruises and tears of his rectum consistent with penetration with a penis or a broom handle was sufficient to establish the specific intent required to find first-degree murder and the crime of involuntary deviate sexual intercourse. In Commonwealth v. Pruitt, 597 Pa. 307, 951 A.2d 307 (2008), cert. denied, 77 U.S.L.W. 3528 (U.S. March 23, 2009) the Supreme Court upheld a conviction of first-degree murder and the death penalty. The body of the 69-year-old victim was found in her home severely bruised with her mouth covered by a towel. The court held the trier of fact was justified in rejecting the claim that the defendant lacked the specific intent to kill due to cocaine ingestion because he admitted needing money for more crack, following the victim into her home, tying her up, taking off her clothes, then untying her, and starting to clean up after he took her money. This evidence was held sufficient to show he was capable of formulating a plan, acting deliberately in pursuit of it and taking steps to conceal his actions, so he was capable of forming the required specific intent in spite of his cocaine use. Mr. O’Donnell’s conduct was more complex.

The evidence was sufficient to support the verdicts of guilty of first-degree murder and involuntary deviate sexual intercourse. These verdicts were not against the weight of the evidence.


author: MASSIAH-JACKSON, J.,

text:
    Speight v. Mahalis

      Marc F. Greenfield, for plaintiffs.

      Gregory F. Mondjack Sr. and John R. Brown, for defendant.
    May 28, 2008
   MASSIAH-JACKSON, J.,

At the conclusion of a jury trial in July 2007, plaintiff Edward Speight Jr. was awarded $75,000. Plaintiff, Ms. Lachette Smith was awarded $50,000. The litigation ensued as a result of a motor vehicle accident wherein defendant-driver, William Whitlock, hit the plaintiffs’ vehicle which had been stopped at a red light in Philadelphia. Both plaintiffs suffered injuries as a result of the impact.

Because Mr. Whitlock died prior to trial, the estate of Mr. Whitlock filed a pretrial motion in limine to preclude trial testimony from any person with an interest adverse to the interest of the decedent. Dead Man’s Act, 432 Pa.C.S. §5930. That motion was granted by the trial court.

Defendant-appellant’s position is that the plaintiffs should not have been permitted to present any trial witnesses. This appeal from the order denying defendants’ post-trial motions has been filed. See exhibit “A”, attached hereto.

In accordance with Rule 1925(a) of the Pennsylvania Rules of Appellate Procedure, this court respectfully submits to the Superior Court the memorandum in support of order denying the defendants’ post-trial motions, dated March 27,2008, as the reasons for the ruling. See exhibit “B”, attached hereto.

EXHIBIT “A”

ORDER

And now, March 27, 2008, after considering the motions for post-trial relief filed by the defendants, and the plaintiffs’ response thereto, and for the reasons set forth in the memorandum filed this date, it is hereby ordered that all of the defendants’ motions are denied.

Judgment is entered in favor of Edward Speight Jr. in the amount of $75,000. Judgment is entered in favor of Lachette Smith in the amount of $50,000.

EXHIBIT “B”

MEMORANDUM IN SUPPORT OF ORDER DENYING THE DEFENDANTS’ POST-TRIAL MOTIONS

MASSIAH-JACKSON, 1, March 27,2008 — Following a motor vehicle collision in July 2004, plaintiffs, Edward Speight Jr. and Ms. Lachette Smith, commenced this litigation in June 2006. The defendant-driver, William Whitlock, died on April 17,2006. Accordingly, the caption reflects that the co-executors and the estate of Mr. Whitlock are named defendants.

The trial testimony was presented on July 16, 2007. The jury returned a verdict in favor of Mr. Speight in the amount of $75,000 and in favor of Ms. Smith in the amount of $50,000.

The estate filed post-trial motions urging a new trial. After receipt of the trial transcript, the parties submitted post-trial memoranda in support of their positions. The parties agreed to waive oral argument.

For all of the reasons which follow, the estate’s motions for post-trial relief are denied.

A. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On July 18, 2004, the plaintiffs, Mr. Edward Speight and his friend, Ms. Lachette Smith, were in their automobile which was stopped at a red light on Port Royal Avenue in Philadelphia. William Whitlock was driving on Henry Avenue and attempted, to make a left turn onto Port Royal Avenue. Mr. Whitlock hit the plaintiffs’ vehicle.

An ambulance and police arrived. Both plaintiffs were transported to nearby Roxborough Memorial Hospital. N.T. 58. X-rays were taken and medications prescribed for both individuals. They were released from the hospital. Both plaintiffs continued out-patient treatments and physical therapy with Dr. John Bowden.

One month prior to trial, counsel met with the trial court to discuss the litigation. Each side submitted a memorandum to comment on the applicability of the Dead Man’s Act, 42 Pa.C.S. §5930, to this case. N.T. 5-6, July 16, 2007.

The estate’s motion in limine sought to preclude testimony from any person with an adverse interest. This trial court granted the defense motion in limine. No person with an interest adverse to the decedent testified about the circumstances of the accident. N.T. 5-6.

B. LEGAL DISCUSSION

Pennsylvania’s Dead Man’s Act states in pertinent part:

“42 Pa.C.S. §5930. Surviving party as witness, in case of death, mental incapacity, etc.
“. . . where any party to a thing or contract is dead, neither any surviving or remaining party to such thing or contract, nor any other person whose interest shall be adverse to the said right of such deceased ... shall be a competent witness to any matter occurring before the death of said party.”

The Act provides that one whose interest is adverse to the interest of a decedent is not a competent witness to any matter which occurred before the decedent’s death.

The estate has reiterated two reasons in support of its position that Police Officer Harmer and Dr. John Bowden should not have testified at trial. First, the defendant-estate contends that these two witnesses provided testimony adverse to the decedent and should have been precluded. The estate relies on Schroeder v. Jaquiss, 580 Pa. 381, 861 A.2d 885 (2004) and Anderson v. Hughes, 417 Pa. 87, 208 A.2d 789 (1965). Second, the defendant-estate contends that Rule 703 of the Pennsylvania Rules of Evidence does not permit an expert witness to provide opinions and conclusions if the underlying facts upon which the opinions were based are inadmissible evidence.

On each occasion at the pretrial proceeding and in the motion in limine and at this post-trial juncture, these two arguments proffered by the estate have been rejected because they are not consistent with Pennsylvania law.

1. Police Officer Harmer Was Qualified To Reconstruct the Circumstances of the Auto Accident

Despite the earlier rulings of the trial court, counsel for the estate objected to the police officer’s expertise in front of the jury and in the middle of plaintiffs’ counsel’s opening statement. Compare, N.T. 6 and N.T. 25, July 16, 2007. The objection again specifically challenged whether or not the investigating officer could render his conclusions as an expert witness. The court ruled that with the proper foundation, the officer would be qualified as an expert. N.T. 25, 100.

Rule 703 of the Pennsylvania Rules of Evidence states:

“The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.”

The law permits an expert to express an opinion based on information and materials not admissible into evidence if they are of a type which the expert would reasonably rely on in his profession. See Milan v. PennDOT, 153 Pa. Commw. 276, 287-88, 620 A.2d 721, 727 (1993), alloc. denied, 535 Pa. 650, 633 A.2d 154 (1993) accident reconstruction; Bernstein, 2007 Pa. Rules of Evidence, comment 5(d) and (e) to Pa.R.E. 703 (Gann).

In this case, the trial court explained to counsel that if and when the proper foundation was established, ie., experience and training, Officer Harmer would be qualified to present his expertise to the jury. N.T. 25. The officer testified that he had been a Philadelphia police officer for 26 years, was trained how to investigate accidents by the police department, had investigated between 500 to 700 motor vehicle accidents and follows a standard procedure for all of his investigations. N.T. 43-44. See generally, Miller v. Brass Rail Tavern Inc., 541 Pa. 474, 664 A.2d 525 (1995). The foundation was established by plaintiffs’ counsel and the officer did present his conclusions. N.T. 42-45, 50.

Officer Harmer concluded that William Whitlock was making a left turn from Henry Avenue and struck the automobile of Mr. Speight which was stopped on Port Royal Avenue near Andorra Shopping Center. N.T. 49-50.

The Dead Man’s Act disqualifies testimony from persons who have an interest adverse to the decedent and not the testimony which is adverse. Balla v. Sladek, 381 Pa. 85, 92, 112 A.2d 156, 160 (1955). The police officer was an independent witness who had no interest in the outcome of the litigation. He was competent and qualified to present his conclusions to the jury. See also, Punxsutawney Municipal Airport Authority v. Lellock, 745 A.2d 666, 670 (Pa. Super. 2000), where the appellate court noted that in order for a witness to be disqualified from testifying, the interest of the witness must be adverse to the interest of the decedent’s estate, citing Gibbs v. Herman, 714 A.2d 432 (Pa. Super. 1998).

2. Dr. John Bowden Was Competent To Testify to the Jury

Under the Dead Man’s Act three conditions must exist before a witness is disqualified: (1) The deceased must have had an interest in the matter at issue, that is, in the result of the suit; (2) The interest of the witness — not simply the testimony — must be adverse; (3) A right of the deceased must have passed to a party of record. E.g., Larkin v. Metz, 398 Pa. Super. 235, 240, 580 A.2d 1150, 1152 (1990), citing In re Hendrickson’s Estate, 388 Pa. 39, 45, 130 A.2d 143, 146-47 (1957); Weschler v. Carroll, 396 Pa. Super. 41, 578 A.2d 13 (1990).

In the case at bar, the interests of Dr. Bowden was not adverse to any interest of the decedent-Whitlock. His testimony was permissible under the Dead Man’s Act. Dr. Bowden was an independent medical professional with no interest in the outcome of the litigation. See also, Broderick Co. v. Emert, 110 Pa. Super. 327, 168 A. 512 (1933) commenting that if a witness will neither acquire nor lose a right, nor incur a responsibility, he is competent to testify.

Next, in Pennsylvania, our Rules of Civil Procedure permit trial testimony to be videotaped if a witness will not be available for trial. See also, Rule 4020(a)(5) of the Pa. Rules of Civil Procedure. In this case, all of the parties and counsel knew that Dr. Bowden would not be coming to the courtroom in order to present live trial testimony. Here, unlike the situation in Schroeder v. Jaquiss, supra, the video testimony was not a “discovery deposition”, rather it was trial testimony. The Supreme Court has clearly articulated that the two processes are distinguishable.

“[Djecedent’s representative waives the Act by taking the deposition of or requiring answers to interrogatories from an adverse party, whether or not he places the results of such discovery on the record.” Schroder v. Jaquiss, supra at 389, 861 A.2d at 890.

The Supreme Court commented that the taking of discovery is not the functional equivalent of trial testimony. The plaintiffs, Speight and Smith, provided specific notice to the estate of the trial videotape session, however, the estate chose to not participate. The trial court’s concerns were appropriate. N.T. 9-11. All objections were waived by the estate by failing to participate at trial.

Finally, because Dr. Bowden was presented as plaintiffs’ expert medical witness, his opinions about the course of treatment and etiology of Mr. Speight and Ms. Smith’s injuries were proper as per Rule 703 of the Pennsylvania Rules of Evidence. A reading of Dr. Bowden’s transcript confirms that he based his conclusions and diagnosis on the history presented by the two plaintiffs and the nature of the impact which created the trauma. Bowden video, N.T. 11,27,32. Dr. Bowden was the actual treating physician for each plaintiff. His opinions were acquired in the course of his treatment and not for the purposes of litigation. He was not a medical expert retained specifically for litigation.

In order to properly diagnose and treat Mr. Speight and Ms. Smith, Dr. Bowden needed to understand the history and mechanism of the injuries and impact.

When the estate chose to waive trial objections to the doctor’s testimony, the post-trial objections have not been preserved.

3. The Verdict Award Does Not Shock This Court’s Conscience

The estate contends that the verdict award is excessive. This court does not agree with the contention. The decision whether or not to grant remittitur lies within the discretion of a trial court. Botek v. Mine Safety Appliance Corp., 531 Pa. 160, 611 A.2d 1174 (1992) and cases cited at 165-66, 611 A.2d at 1176. Ajury verdict, if supported by the evidence, will be permitted to stand when there is nothing to suggest that the jury was guided by partiality, prejudice, mistake or corruption. Neither a new trial nor remittitur is appropriate. Carminati v. Philadelphia Transportation Company, 405 Pa. 500, 176 A.2d 440 (1962); Bey v. Sacks, 789 A.2d 232 (Pa. Super. 2001).

In defendant’s answer to complaint and new matter, at paragraphs 23-25, the estate asserted that Mr. Speight’s and Ms. Smith’s claims were “limited, governed, barred, and/or restricted by the terms of the Pennsylvania Motor Vehicle Financial Responsibility Law of 1984,75 Pa.C.S. §1701 et seq.” Generally, a defendant has the burden of proof on affirmative defenses and counterclaims. Because the estate did not present evidence of the insurance, it failed to satisfy its affirmative burden that recovery was restricted to a limited tort election on the applicable automobile policy. See Packel and Poulin, Pennsylvania Evidence, §321-1 (West, 3d ed. 2007) citing Zenner v. Goetz, 324 Pa. 432, 435, 188 A. 124, 125 (1936) at n.6.

The jury observed Ms. Smith, age 29, as she described her injuries and treatment. Immediately after the accident, Ms. Smith suffered from severe headaches which lasted several days, N.T. 81, and she continues to have non-migraine headaches. She described back pain and neck pain, N.T. 81, confirmed by Dr. Bowden. Video, N.T. 27-29. She was a front-seat passenger, and did not strike her head or lose consciousness. Bowden video, N.T. 27. Ms. Smith treated with her family doctor from July 2004 to November 2004. Then, she treated with Dr. Bowden from November 2004 through March 2005. The eight months of treatment and physical therapy included physical medicine and exercises. Bowden video, N.T. 30. Ms. Smith also was evaluated by a chiropractor.

Ms. Smith attended one year of college and works in accounting which requires her to sit for long periods of time. She has a more than 10-year work history. N.T. 80. She is able to take breaks at work when she feels pain and discomfort. N.T. 87. When the weather is damp or raining she feels pain, N.T. 85-86, and has had difficulty sleeping and engaging in activities of daily living. N.T. 88-89.

Dr. Bowden has opined that Ms. Smith’s future is “guarded” and “uncertain”. Bowden video, N.T. 33. She suffered from post-traumatic strain and thoracic strain, with ileum dysfunction — meaning trauma to her hip bones caused her back pain, and post-traumatic headaches, all caused by the accident. Bowden video, N.T. 32.

Mr. Speight, 34 years old, who has a work history as a laborer and certified brick layer, was forced to change job assignments as a result of the accident. N.T. 66-69. Prior to July 2004, he built scaffolding and heavy construction work. When he was transported by the ambulance to the hospital, he felt pains in his back, neck and right knee. N.T. 58. X-rays were taken and he was given muscle relaxers. N.T. 61. Dr. Bowden testified that Mr. Speight suffered low back and upper back pain, as well as tenderness in his neck, and post-traumatic headaches. Bowden video, N.T. 13-14.

Dr. Bowden confirmed complaints of Mr. Speight’s right knee injury and described a right medial meniscus tear, patella femoral chronditis and internal knee derangement. Bowden video, N.T. 17-18. Mr. Speight described to the jury that when his knee swells, he goes to the doctor who drains the fluid with a needle. N.T. 65-66.

The treatment from July 2004 to November 2005 involved ultrasound, moist heat, and physical therapy. Bowden video, N.T. 15-16. The plaintiff also visited a chiropractor. N.T. 76. Dr. Bowden explained his opinion that the impact of William Whitlock’s car threw Mr. Speight forward then backward. Bowden video, N.T. 12, 24.

Prior to July 2004, Mr. Speight played sports with organized summer teams. Now, he cannot sit for long periods, has aching pains, and has gained 30 pounds. N.T. 64,70. The fixture prognosis is perxnanent significant impairments, with difficulty walking and squatting. Bowden video, N.T. 25. There was an abnormal CT scan result on the right knee, Bowden video, N.T. 15-16, and there is tom cartilage.

It was up to the triers of fact to assess the evidence and the credibility of the witnesses. When appraising all of the evidence and the many items of damages, this court which sits as an experienced civil trial court, and which had the benefit of seeing and hearing all of the evidence, concludes the jury’s verdict was fair, thoughtful and reasonable. Haines v. Raven Arms, 536 Pa. 452, 640 A.2d 367 (1994).

C. CONCLUSION

For all of the reasons set forth above, the motion for post-trial relief filed by the estate of William Whitlock and the co-executors is denied.

The jury’s award for damages is affirmed. Judgment is entered in favor of Edward Speight Jr. in the amount of $75,000, and in favor of Lachette Smith in the amount of $50,000.


author: MAS SI AH-JACKS ON, J.,

text:
    Small v. Temple University Hospital

      Norman Perlberger, for plaintiff.

      Meyer A. Bushman and Ira W. Bushman, for defendants Temple University Hospital, Chatila, Patellis, Solimán, Getz, Ende, Ali and Agrama.

      Richard R. Galli, for defendant Finestone.
    November 10, 2008
   MAS SI AH-JACKS ON, J.,

On September 25,2003, Mr. Rufus Small unexpectedly died while he was a patient at Temple University Hospital. Mr. Small suffocated when he was unable to breathe due to an obstruction of his endotracheal tube. The blockage was a mucous plug, that is, hardened mucous secretions at the tip of his breathing tube. These facts were not hidden or denied by the Hospital.

The litigation commenced in September 2005, when the complaint was filed by the family. Six months later in March 2006, the defense expert confirmed to Temple Hospital that Mr. Small’s respiratory deterioration was related to “concretized” sections at the tip of the endotracheal tube.

Following a jury trial, a verdict was rendered on December 6, 2007. The trial testimony presented by the plaintiffs and by the defendants revealed that the failure of the nurses or the respiratory therapists or other employees of Temple University Hospital to perform regular, routine or repeated suctioning of Mr. Small’s breathing tube over a period of several hours resulted in the mucous build-up which hardened and obstructed his airway, causing hypoxia/lack of oxygen and his death. Further, the failure of the Temple University Hospital employees and agents to communicate to the physicians about the patient’s known breathing difficulties prevented timely medical monitoring, assessment and evaluation of Mr. Small’s deteriorating situation. The jury awarded plaintiffs $1.7 million.

On September 10, 2008, the post-trial motions of Temple University Hospital were denied. See court exhibit “A”, attached hereto.

In accordance with Rule 1925(a) of the Pennsylvania Rules of Appellate Procedure, this court respectfully submits to the honorable Superior Court, the memorandum in support of order denying Temple University Hospital’s motion for post-trial relief and granting plaintiff’s motion for delay damages, dated September 10, 2008, as the reasons for the ruling. See court exhibit “B”, attached hereto.

EXHIBIT “A”

ORDER

And now, September 10,2008, after consideration of the motion for post-trial relief filed by the defendant and the plaintiff’s response thereto, and, for the reasons set forth in the memorandum filed this date, it is hereby ordered that the motion for post-trial relief filed by Temple University Hospital is denied, and the plaintiff’s motion for delay damages (unopposed) is granted.

Judgment is entered in the amount of $1,885,288.35 in favor of plaintiff Emmanuel Small, administrator of the estate of Rufus Small, deceased and against defendant Temple University Hospital.

EXHIBIT “B”

MEMORANDUM IN SUPPORT OF ORDER DENYING TEMPLE UNIVERSITY HOSPITAL’S MOTION FOR POST-TRIAL RELIEF AND

GRANTING PLAINTIFF’S MOTION FOR DELAY DAMAGES

MASSIAH-JACKSON, J., September 10, 2008—

I. PROCEDURAL HISTORY

Following the death of Rufus Small on September 25, 2003, his family brought this medical malpractice action against several physicians and Temple University Hospital.

On December 6,2007, the eighth day of trial, the jury returned a unanimous verdict in favor of the estate of Rufus Small in the amount of $1.7 million and against Temple University Hospital only. The jury found in favor of the three named defendant-doctors: Wissam Chatila M.D., Susan D. Agrama M.D., and Nicholas Patellis M.D. All other physicians listed on the caption were dismissed prior to trial.

The hospital has filed post-trial motions. The estate of Rufus Small filed a motion for delay damages. After receipt of the trial transcript, the parties submitted memoranda of law in support of their positions. The parties agreed to waive oral argument.

The defendant-Hospital contends that the trial court should have granted a directed verdict in favor of the Hospital, and does not seek a new trial. After careful consideration and for the reasons set forth in this memorandum, the court has determined that the plaintiff-estate of Rufus Small did meet its burden of proof. Judgment n.o.v. is not appropriate in this litigation. Temple University Hospital’s motion for post-trial relief is denied.

In Niles v. Fall Creek Hunting Club Inc., 376 Pa. Super. 260, 545 A.2d 926 (1988), the Superior Court commented at 264-65, 545 A.2d at 928-29:

“The entry of judgment notwithstanding a jury verdict ... is a drastic remedy. A court cannot lightly ignore the findings of a duly-selected jury. Thus, in considering a motion for judgment n.o.v., the court must view the evidence and all reasonable inferences that arise ... in a light most favorable to the verdict winner.”

See also, Sundlun v. Shoemaker, 421 Pa. Super. 353, 617 A.2d 1330 (1992); Nernberg & Laffey v. Patterson, 411 Pa. Super. 417, 601 A.2d 1237 (1991); Vernon v. Stash, 361 Pa. Super. 36, 532 A.2d 441 (1987). Judgment n.o.v. is appropriate where either the evidence is such that no two reasonable minds could disagree that the outcome should have been rendered in favor of the movant, or the movant is entitled to judgment as a matter of law. Somerset Community Hospital v. Allan B. Mitchell & Associates, 454 Pa. Super. 188, 197, 685 A.2d 141, 146 (1996); Moure v. Raeuchle, 529 Pa. 394, 604 A.2d 1003 (1992). Neither situation is present in this action.

When considering whether a movant is entitled to judgment as a matter of law, the court must review the record and conclude that even with all factual inferences decided adverse to the movant, the law nonetheless requires a verdict in their favor. Quinby v. Plumsteadville Family Practice Inc., 589 Pa. 183, 204, 907 A.2d 1061, 1074 (2006).

Under the circumstances of this case judgment n.o.v. shall not be entered. All of the medical testimony was consistent in the conclusion that Mr. Small’s airway tube was blocked by a “concretized” mucous plug which could only have developed over a period of several hours and only if the Temple University Hospital nurses and staff failed to appropriately suction his breathing tube.

II. FACTUAL BACKGROUND

The facts leading to the death of Rufus Small are not in dispute. Every lawyer, doctor and witness explained to the jury that Mr. Small suffered cardiac arrest as he lost oxygen and suffocated when the secretions in his breathing tube hardened into a “concretized” mucous plug.

Defense counsel told the jury in his opening statement, at Day I, N.T. 70:

“My clients do not hide, nor did they hide at the time, from the fact that Mr. Small died after developing an obstruction, a mucous plug, in his breathing tube.
“This is a known, accepted risk, a complication that can occur in the best of hands and despite the best treatment.”

Plaintiff’s counsel told the jury in his closing statement, at Day VII, N.T. 55-65:

“But from 8 o’clock at night, to at least 4 in the morning ____Each minute he saw his life slipping away. Each minute he was gasping for air. Each minute he was in restraints and couldn’t do anything about it. Each minute he had a tube down his throat and he couldn’t speak.... Nobody bothered checking in on him.
“He’s gasping for air. He knows he is dying.”

Defendant-Dr. Susan D. Agrama (expert witness) told the jury, on Day I, N.T. 200:

“Q. When a person has a tube in them like this, are you supposed to do anything to prevent a mucous plug?
“Dr. Agrama: Routine suctioning of the tube is done.
“Q. How often?
“Dr. Agrama: Every few hours or so.”

Dr. Kevin H. Ende’s (ear, nose and throat specialist) testimony to the jury, on Day III, N.T. 52, 54:

“Q. Do you remember what Dr. Grimes [ear, nose and throat doctor] told you, other than the fact that [Mr. Small] had passed away?
“Dr. Ende: He had told me that he — basically he got called because the patient was in respiratory distress. He went down there with the bronchoscope and was unable to pass the bronchoscope, and the patient started to code and eventually died....
“Q. Was it your understanding that the endotracheal tube had been clogged . .. ?
“Dr. Ende: My understanding was that Dr. Grimes felt that the endotracheal tube was clogged?”

Dr. William Fineman, plaintiff’s expert witness, told the jury, at Day III, N.T. 122-24:

“Q. What should the staff be doing in the critical care unit when they have secretions like this?
“Dr. Fineman: The first line of approach for immobilizing secretions is to suction the patient.... You have an individual here who, because of this tube that’s been placed down his throat cannot cough ....
“So, you have to have someone take a sterile suction catheter, someone knowledgeable, because there is a skill involved, and insert the tube into the airway, and try to direct it into both sides of the lungs ....
“What I believed happened here is that the mucous remained down in the bronchial tubes and, of course, would settle in the lowest part of the lungs, and it would eventually dry out over time and become even harder to suction out, and even more permanent, more difficult an obstruction to remove.
“... if it’s watery, that’s one thing, but if the secretions become more and more like j ello, they get harder to suction out and eventually they actually plug the bronchial tubes.”

Dr. Michael Anthony Grippi, the defendant’s expert witness told the jury, Day IV, N.T. 205, 208:

“Q. Well, Dr. Fineman testified, you don’t get a concretized plug just like that. First, it has a watery consistency; then, as it gets harder, it’s like a jelly consistency.
“To get a concretized plug — the word ‘concretized’ is the word concrete — that take hours, he said.
“Do you agree with that?
“Dr. Grippi: It’s like that’s true, yes ....
“Q. If that’s true and there’s secretions being noted and nobody is suctioning, that’s pretty serious, isn’t it?
“Dr. Grippi: If there were secretions, then he needed to be suctioned, I would agree.
“Q. And if he is not suctioned, that’s what’s going to cause this plug?
“Dr. Grippi: It is going to contribute to the development of the plug.”

Defendant-Dr. Nicholas Patellis told the jury, Day VI, N.T. 54, 83, 120:

“Q. Were [ENT and anesthesia] able to pass through the tube?
“Dr. Patellis: With the fiberoptic laryngoscope, or the scope that goes through the tube, they were not able to advance that tube ....
“Q. Isn’t a patient in intubation supposed to be suctioned regularly?
“Dr. Patellis: If he needs it, yes.
“Q. Who makes that determination?
“Dr. Patellis: The nurses as well as the physicians, if necessary....
“Q. Why couldn’t he be ventilated? ...
“Dr. Patellis: Because the mucous plug acted like a one-way valve.”

Defendant-Dr. Wissam Chatila (expert witness) told the jury, at Day VI, N.T. 226, 228, 234:

“Q. Okay. Now, one of the ways to anticipate those problems is to instruct them to make sure that the nurses or the respiratory therapists are suctioning on a regular basis, right?
“Dr. Chatila: Yes.
“Q. Okay. Because if they do that on a regular basis, they will either find out that there is a problem, because nothing is coming up, or, isn’t coming up the way it should be, or, they are eliminating a problem, right?
“Dr. Chatila: Yeah. I mean if there are suctionings, they would be suctioning those secretions, if there are problems ....
“Q. Would you want Mr. Small to be suctioned regularly?
“Dr. Chatila: Regularly, routinely....
“Dr. Chatila: No one expected [Mr. Small] to die at that moment, of course.
“Q. What caused him to die was this mucous plug, right?
“Dr. Chatila: Yes.”

Thus, looking at the facts in the light most favorable to the verdict winner, and, in accord with trial testimony presented by the plaintiffs and by the defendants, the failure of the nurses or the respiratory therapists or other employees of Temple University Hospital to perform regular, routine and repeated suctioning of Mr. Small’s breathing tube over a period of several hours resulted in the mucous build-up which hardened and obstructed his airway, causing hypoxia/lack of oxygen and his death.

III. LEGAL DISCUSSION

A. Nurse Tishany Parker and Other ICU Nurses Were Employees and Agents of Temple University Hospital

Temple University Hospital contends that because the nurses and other Intensive Care Unit staff were not specifically identified by name, then the Hospital cannot be held vicariously liable. Temple post-trial brief, N.T. 38-41. This court does not agree.

Generally, in order to maintain a cause of action for medical malpractice, the plaintiff must present expert testimony which demonstrates a variance from accepted medical practice, and establishes that this deviation from community standards caused the plaintiff’s injuries, e.g., Hoffman v. Mogil, 445 Pa. Super. 252, 665 A.2d 478 (1995). In this case the plaintiff presented expert testimony of the nursing deviations, i.e., the failure to suction the breathing tube and the failure to communicate known breathing difficulties to the physicians. The plaintiff expert described the manner in which the deviations caused Rufus Small’s death.

At the close of the evidence on Day VII, the parties submitted their jury instructions for the court to read to the jury. Temple Hospital submitted 4.02 of the Standard Civil Jury Instructions and admitted that Temple University was vicariously liable for negligent conduct of its nurse-employees. This legal admission was part of the charge read to the jury. Day VII, N.T. 122-23.

Contrary to the assertions made in the defendant’s post-trial memorandum, the fact that the family members and trial witnesses knew the name of only one nurse, Tishany Parker, assigned to provide care to Rufus Small, does not relieve Temple Hospital from liability due to negligence of other unnamed staff employees. See paragraph 33 of the amended complaint:

“(33) For the purposes of this complaint, in addition to the named resident physicians, the agents, ostensible agents, servants and employees of the defendants as to whom negligence is being alleged is limited to the following discrete classes of individuals whose names are illegible in the medical records or who cannot otherwise be ascertained in advance of discovery:
“All physicians, residents interns, medical students, physicians’ assistants, nurses, aides, orderlies, technicians, office staff and/or attendants who provided medical care to plaintiff’s decedent RUFUS SMALL at TEMPLE UNIVERSITY HOSPITAL on September 23, 2003 through September 25, 2003.”

See also, Rule 1033 of the Pennsylvania Rules of Civil Procedure; Small v. Columbia Gas of Pennsylvania Inc., 363 Pa. Super. 61, 69, 525 A.2d 424, 428 (1987).

Temple Hospital controlled the medical records and personnel files for the staff. The trial evidence provided sufficient details for this defendant to respond to the allegations of tortious conduct which resulted in Mr. Small’s death.

Plaintiff’s expert witness, Dr. Fineman, testified that Temple Hospital deviated from the standard of care in the treatment of Mr. Small and that the deviation of care contributed or led to Mr. Small’s death. Day III, N.T. 98, 153-56. He explained his opinions of what went wrong, the miscommunications and the mismanagement. Dr. Fineman told the jury that the failure of the hospital personnel to suction the mucous from Mr. Small’s tube was the reason Dr. Agrama was able to visualize the blockage, a “concretized” mucous plug, when the patient coded. Day III, N.T. 153-60. All of his opinions were expressed to a reasonable degree of medical certainty.

Dr. Fineman opined that when Dr. Ende, an ear, nose and throat specialist, found increased secretions in the breathing tube on the morning of September 24, 2003, the nurses and staff should have been suctioning out both sides of the lungs. Day III, N.T. 121-23. Later that evening when Mr. Small’s daughters were visiting, the patient wrote two notes stating that it was “hard to breathe.” Day II, p.m., N.T. 64-69, 85-86; Day IV, N.T. 15-18, 24-26. The patient’s daughters spoke with nurse Tishany Parker and other ICU staff and told them about the notes and their father’s breathing problem. The record reveals that each defendant-doctor testified that the responsibility for suctioning is the nurse’s responsibility, e.g., Agrama, Day I, N.T. 200; Patellis, Day VI, N.T. 83; Chatila, Day VI, N.T. 226. Plaintiff’s expert witness and Temple Hospital’s expert witness opined that it was the nurses’ duty to suction the breathing tube, e.g., Fineman, Day III, N.T. 122-24; Grippi, Day IV, N.T. 123.

The undisputed evidence heard by the jury was that Mr. Small was having difficulty breathing as early as 8 p.m. on September 24. Nurse Tishany Parker knew he was having breathing difficulties. Meanwhile, the secretions were building up in his endotracheal tube and the mucous hardened. The tube was suctioned one time by a nurse at 10 p.m., thereafter Mr. Small fell asleep. The patient continued to have difficulty breathing and by 2 a.m. on September 25, he was in significant discomfort using his accessory muscles to gasp for oxygen. Dr. Agrama arrived at his bedside for the first time at about 2:30 a.m. He could not be ventilated and “concretized” secretions were observed on the tip of the endotracheal tube. Mr. Small died on September 25,2003, as a result of cardiac arrest brought on due to the exertion of trying to breathe through the obstructed tube.

Dr. Agrama, qualified as an expert witness by her attorney, opined that the failure of Nurse Tishany Parker or other ICU nurses to communicate to her (Dr. Agrama) that they had been told by the family that Mr. Small had difficulty breathing breached the nursing standard of care. Day II, N.T. 121.

Dr. Fineman provided the causal nexus of this failure to communicate and Mr. Small’s death. None of the defendant-doctors were made aware that Mr. Small had written the notes. As a result, the physicians medicated and sedated Mr. Small under the belief that he was suffering from an ICU syndrome or psychosis. Day III, N.T. 129-31, 152-53, 166-67, 176-77.

The plaintiff’s expert opined at Day II, N.T. 152-53:

“Well, the conclusion [that Mr. Small was not in respiratory failure] is in error, because we’re not talking about a normal person who suddenly develops respiratory failure; we’re talking about a gentleman who weighed about 120 pounds, he was a small man, who was given large doses of sedation.
“So, he was given so much sedation, and more than one kind of sedative in a relatively short period of time, so that that covered up for his respiratory decompensation and it, of course, put him to sleep.
“If you give anybody enough sedative, no matter how much distress the patient is in, you can eventually put the patient to sleep. And that’s what happened in this case.”

Dr. Agrama stated she believed Mr. Small was agitated because he was intubated. Day II, N.T. 117. Ativan was repeatedly administered to calm the patient. Haldol was given to him. Restraints were placed because he tried to pull out his tube. Dr. Agrama believed that Mr. Small was confused and disoriented in the ICU setting. Day II, N.T. 27, 118-19. Significantly, she did not visit Mr. Small’s bedside on the evening of September 24. She saw him at about 2:30 a.m. on September 25,2003, when he was already in respiratory distress and coding. Compare, Campbell v. Attanasio, 862 A.2d 1282, 1283-84 (Pa. Super. 2004).

Because the patient was not appropriately monitored, the doctors failed to appreciate the gravity of Mr. Small’s condition. Dr. Fineman summarized his opinion and conclusions at Day III, N.T. 154-55:

“He had very significant heart disease on autopsy, but it was silent while he was living.
“So, the combination of being unable to breathe and that not being managed properly by having him evaluated in a timely manner, being suctioned properly, having a portable chest x-ray done, which the x-ray was not followed like it should have been, to see why his chest was sounding worse and worse.
“Not having, as I said, the cardiogram, as a result, there was a false sense of security on the part of his caregivers, because they were trusting too much in this oximeter reading, which I tried to explain to you why you can’t rely on that by itself.
“And he did not have a sampling of his arterial blood, which would have given a truer view of how his oxygen status was.
“As a result, there were several days of stress to the heart, while he tried to move air, which was increasingly difficult, and to the point where, in the end, they couldn’t even get the air — force the air into him that well when they were trying to resuscitate him, climaxed by him finally having cardiac arrest, cardiovascular blocks from his underlying heart condition, with this condition superimposed on it, shock and death.”

Plaintiff’s expert witness opined that with proper communication and patient care management, the defendant-physicians should have been at Mr. Small’s bedside to assess and evaluate his condition. Day III, N.T. 132-34, 147-52, 182-92. Dr. Fineman’s opinion was that proper nursing practice would have alerted the physicians to Mr. Small’s breathing difficulties, his deteriorating situation and would have prevented the mucous build-up in the endotracheal tube.

On the other hand, Temple Hospital argued to the jury that the ICU nurses were attentive, that they appropriately evaluated and cared for Mr. Small and, they appropriately communicated information to the physicians.

Both sides agreed that by the time Dr. Agrama and Dr. Patellis arrived at Rufus Small’s bedside in the morning hours of September 25, 2003, and then called on ENT and anesthesiologists to attempt to ventilate the patient, it was too late.

1. Mr. Small’s Suffocation and Death Was the Direct, Natural and Probable Result of His Obstructed Breathing Tube

Under the particular circumstances of this case, it may be that the failure of Temple Hospital nurses to provide an unobstructed breathing tube for the patient is a matter so simple, and the want of care so obvious, as to be within the range of the ordinary experience and comprehension of nonprofessional persons. See generally, Rule 702 of Evidence; Smith v. Yohe, 412 Pa. 94, 194 A.2d 167 (1963). Bernstein, 2008 Pa. Rules of Evidence, comment 4b to Pa.R.E. 702 (Gann).

Generally, courts strictly require expert testimony in a medical malpractice case, however, where the harm is the natural and probable result and so closely connected and so readily apparent that a layman can comprehend the causal connection, expert testimony may not be an absolute requirement. See Packet and Poulin, Pennsylvania Evidence, §721 and numerous cases cited at n. 3-8.

B. Dr. William Fineman Was Qualified To Present Expert Testimony Pursuant to the M-CARE Act.

Section 512 of the M-CARE Act provides in pertinent part at 40 Pa.C.S. §1303.512:

“Section 1303.512. Expert qualifications
“(a) General rule. — No person shall be competent to offer an expert medical opinion in a medical professional liability action against a physician unless that person possesses sufficient education, training, knowledge and experience to provide credible, competent testimony and fulfills the additional qualifications set forth in this section as applicable.
“(b) Medical testimony. — An expert testifying on a medical matter, including the standard of care, risks and alternatives, causation and the nature and extent of the injury, must meet the following qualifications:
“(1) Possess an unrestricted physician’s license to practice medicine in any state or the District of Columbia.
“(2) Be engaged in or retired within the previous five years from active clinical practice or teaching.
“Provided, however, the court may waive the requirements of this subsection for an expert on a matter other than the standard of care if the court determines that the expert is otherwise competent to testify about medical or scientific issues by virtue of education, training or experience.”

Dr. William Fineman acknowledged that he has not had an active clinical practice since 1999. Accordingly, in order to testify pursuant to section 512(b)(2), the plaintiff’s expert witness in pulmonary medicine, internal medicine and critical care must, “be engaged in . . . teaching.”

After a hearing, it was the trial court’s conclusion that Dr. Fineman met this qualification. His teaching activities satisfied the requirement to enable him to testify as to standard of care as well as causation.

In Amato v. Centre Medical and Surgical Associates, WL 1987427*3 (Pa. C.P. Centre 2004), the trial judge rejected plaintiff’s expert witness concluding that his informal role as a mentor provided, “no indicia of evidence that the doctor operated in the role of a teacher.” The proffered expert had left his clinical practice 15 years earlier, had no schedule, no compensation, no formal classroom, and no lectures or research. In Weiner v. Fisher, 871 A.2d 1283 (Pa. Super. 2005), the record was remanded to the trial court because the proffered expert provided, “vague pronouncements of teaching activity.” 871 A.2d at 1290. There was insufficient evidence of who the “students” were, what the subject matter consisted of the academic settings and level of teaching, the amount of time spent each week for the teaching.

This court is mindful of the legislative intent to regulate and enhance the qualifications of medical experts who testify about the standards of care in medical malpractice litigation. Dr. Fineman’s testimony during the hearing on the motion in limine established that he possessed “sufficient education, training, knowledge and experience to provide credible, competent testimony .. . .” 40 P.S. §1303.512(a); Weiner v. Fisher, supra.

Dr. Fineman’s in limine hearing testimony (Day III) revealed that he had an active clinical practice from the time he graduated from the University of Pennsylvania Medical School and completed his residency in pulmonary and internal medical [sic] from 1978 to 1999. Day III, N.T. 10. From 1999 to 2002, Dr. Fineman was the medical director of CIGNA, then became the medical director of Horizon Blue Cross and Blue Shield since 2002. He goes to hospitals, consults and confers with attending physicians and hospital department heads. N.T. 10. He personally goes to nine hospitals in the Delaware Valley region to teach nurses, attending physicians, department heads, and quality review people and physicians who are employed by hospitals with regard to the standard of care in pulmonary medicine for the member-patients. N.T. 18. He is responsible to visit the hospitals to consult with and teach attending physicians, review cases and patient care. N.T. 17. Because he is the only lung specialist for Horizon Blue Cross in New Jersey, he is expected to teach nurses and physicians in his area of expertise, pulmonary care and critical care. N.T. 17. He is part of a team which oversees care of member-patients; he reads hemodynamic lab information in the critical care setting; and coordinates the care and treatment. N.T. 12-13.

Dr. Fineman works day-to-day on clinical management issues on member-patients who are hospitalized in the general hospital setting and critical care setting. He will discuss new therapies, choice of therapies and implementation decisions by physicians, technology or instrumentation decisions for member-patients. N.T. 19. He meets with the clinical treatment team to review patients at certain hospitals. N.T. 20. His teaching responsibilities involve daily patient care with physicians, nurses and staff. N.T. 21.

Dr. Fineman testified that he is actively involved with the quality and adequacy of the treatment, appropriateness of treatment, the application of technology, and the management of the care of individual member-patients on a daily basis. N.T. 22. Further, he actively reviews the plans of care and the medication for patients who are intubated, coding and who suffer from cardiac problems. N.T. 23. Although. Dr. Fineman does not have a clinical practice, he instructs residents, doctors and fellows and caregivers of the patients about how to proceed diagnostically or with patient management. N.T. 26-29.

At the close of the in limine hearing, the record established by the plaintiff was not vague or ambiguous. Dr. Fineman’s day-to-day role is not infonnal or unstructured. Rather, the plaintiff established that the witness was qualified in the areas of pulmonary medicine, internal medicine and critical care. He is currently engaged in daily and active instruction of physicians, nurses and staff in actual medical practice. Dr. Fineman’s daily activities were not limited to administrative or consulting or advisory. The background and experiences presented by Dr. William Fineman met the enhanced standards set forth in section 512 of the M-CARE Act.

The plaintiff presented Dr. Fineman to the jury. The witness reviewed his background and experiences for the jury during voir dire. Temple University Hospital’s post-trial memorandum disparagingly asserts that Dr. Fineman is “an insurance company employee with obvious interests, not an academic seeking to impart generalized wisdom for its own purpose.” Page 31, Temple’s memorandum, dated April 29,2008. This witness affimir atively rejected defense counsel’s similar commentary during the trial. Day III, N.T. 90:

“Dr. Fineman: . . . My decisions are independent of whether people get — there is payment made or not.
“I oversee the quality of care, the medical necessity for care. Payment decisions are made by an entirely different group. I don’t know what their ultimate decisions are. I don’t care to know what their ultimate decisions are.
“I feel that in my capacity I serve to be an advocate for the patient, to see that they’re getting the right kind of care when they need it, and to protect them from, unfortunately, overutilization of by physicians or improper care by physicians, or protect them from, unfortunately, the incompetence of physicians.
“So, I feel that I’m kind of like the internal affairs department of the police force. I’m looking out to try to protect the public from internal forces that may be negative in their care.”

While Temple Hospital suggests that the Pennsylvania Legislature limited the meaning of “teaching” to lecture halls and course preparation, even Dr. Grippi, the defense expert, understood that being engaged in medical teaching includes teaching at bedside rounds as well as instructing individual doctors, residents, fellows or interns while evaluating a patient. Day IV, N.T. 82-84. Dr. Fine-man described his role in detail as one of the team of diagnostic and care management physicians actively teaching other physicians, nurses and health care clinicians responsible for patient care on a daily basis.

The trial court determined that Dr. Fineman was appropriately qualified as plaintiff’s expert medical witness in this case.

C. Temple Hospital’s Attempt To Impeach Dr. Fineman by the Use of Extrinsic EvidenceWas Improper

Near the end of the trial and four days after plaintiff’s expert witness testified, counsel for Temple Hospital announced for the first time that they located a physician from Thomas Jefferson University Hospital who was being offered to challenge the qualifications and the credibility of Dr. William Fineman. Day V, N.T. 11, 60-70. At defense request, the jury was sent home and a second in limine hearing was held to consider again whether plaintiff’s expert witness was qualified under the M-CARE Act. After the hearing, the trial court denied Temple Hospital’s request to either strike Dr. Fineman’s testimony or to permit the Jefferson doctor (Gregory Kane M.D.) to testify to the jury. Day V, N.T. 61 -71; Day VI, N.T. 278-98, 303-18.

Initially, it must be noted that the untimely objections to Dr. Fineman’s qualifications presented at the first and second in limine hearings could have been raised prior to trial. See Vicari v. Spiegal, 936 A.2d 503 (Pa. Super. 2007) at 512 n. 10, where the honorable Superior Court commented:

“Although we do not condone the defendants’ untimely objection to Dr. Blum’s qualifications and find plaintiff’s waiver argument persuasive, because we have determined that Dr. Blum was indeed qualified to render his opinion, we decline to engage in an analysis of the parties’ competing waiver arguments.”

While Pennsylvania Rule of Evidence 607 permits the credibility of witnesses to be impeached by any evidence relevant to the issues, the law governing impeachment evidence draws a clear distinction between extrinsic and non-extrinsic evidence. Packel and Poulin, Pennsylvania Evidence §607-1 (West, 2nd ed. 1999). When the so-called impeaching evidence is elicited by calling another witness, the impeaching evidence is called extrinsic evidence. Packel and Poulin state:

“Impeachment by extrinsic evidence will be prohibited. This treatment is appropriate where the likelihood of prejudice, confusion of issues, or waste of time exceeds the possible probative value of the extrinsic evidence.... the party is ‘bound by the witness’ testimony’ in cross-examination.”

In the case at bar, Temple Hospital knew the name of, and received the curriculum vitae of, plaintiff’s expert witness, William Fineman M.D., more than six months prior to trial. Day V, N.T. 19-27. This litigation involved the unexpected death of a patient. All of the resources of this major medical institution were available for timely and thorough investigation.

Packel and Poulin cite McCormick, Evidence §47,49 (4th ed. 1992), and notes:

“When impeachment evidence has been offered, a party may offer evidence to rehabilitate the witness.”

When the “surprise” physician-witness from Jefferson Hospital appeared in the courtroom, it was too late for the parties to make inquires of Dr. Fineman to clarify, amplify, modify or rehabilitate his testimony. It was too late for the parties to subject Dr. Grippi, defense expert, to additional questions about his testimony. The surprise witness was presented to the court after plaintiff’s expert witness testified for a full day, and after the defense expert testified for another full day, and after multiple telephone calls were exchanged between doctors and lawyers. All of this unusual activity emanated from personal friendships of the defense attorneys. See also, Bernstein, 2007 Pa. Rules of Evidence, comment 4 to Pa.R.E. 607 (Gann), noting a court has great discretion to limit or reject collateral attacks on a witness’ credibility by extrinsic impeachment.

The record supports the trial court’s decision. First, Dr. Fineman was extensively voir dired by all counsel. The court concluded that he did meet the M-CARE Act requirements. Day V, N.T. 66-68. Next, there was no opportunity to rehabilitate the expert witness. It would have confused the jury and unfairly prejudiced the plaintiff if Dr. Kane testified without the opportunity for Dr. Fineman to respond. Temple Hospital is bound by its extensive cross-examination of Dr. Fineman on Day III of the trial (140 pages of transcript). This manner of extrinsic impeachment evidence (trial by ambush) was unfair and was collateral and was properly excluded. 3 A. Wigmore §§877-878.

IV. PLAINTIFF’S MOTION FOR RULE 238 DELAY DAMAGES IS GRANTED

Following the jury verdict of $ 1.7 million on December 6, 2007, the plaintiff-estate of Rufus Small filed a motion for delay damages which was calculated in the amount of $185,288.35. Temple Hospital did not oppose plaintiff’s motion.

Accordingly, the verdict will be molded and judgment will be entered in the amount of $1,885,288.35.

V. CONCLUSION

For all of the reasons set forth above, the motion for post-trial relief filed by Temple University Hospital is denied.