Schaub, R. v. Byron, T., M.D.

S
J-S25023-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 ROBERT ANDREW SCHAUB                     :    IN THE SUPERIOR COURT OF
                                          :         PENNSYLVANIA
                     Appellant            :
                                          :
                                          :
              v.                          :
                                          :
                                          :
 THOMAS W. BYRON, M.D. AND                :    No. 735 MDA 2019
 SPORTS MEDICINE BONE AND JOINT           :

             Appeal from the Judgment Entered April 11, 2019
  In the Court of Common Pleas of Luzerne County Civil Division at No(s):
                               2013-07122


BEFORE: LAZARUS, J., DUBOW, J., and KING, J.

MEMORANDUM BY DUBOW, J.:                             FILED MARCH 18, 2021

      Appellant, Robert Andrew Schaub, appeals from the Judgment entered

on April 11, 2019, following a jury verdict in favor of Dr. Thomas Byron and

Sports Medicine Bone and Joint in this medical malpractice action. After careful

review, we affirm.

      In December 2009, Appellant injured his right wrist while playing

basketball. In February 2010, he began treating with Dr. Byron at Sports

Medicine Bone and Joint. Dr. Byron diagnosed Appellant with a right scaphoid

bone fracture and placed Appellant in a long arm cast then, later, a short arm

cast. Dr. Byron discharged Appellant from his care in June 2010.

      In Fall 2010, Appellant fractured his left wrist and re-fractured his right

wrist. Appellant returned to Dr. Byron’s care in December 2010 and underwent
J-S25023-20



bone-graft surgery on his right wrist. Appellant had several right wrist x-rays,

at Dr. Byron’s request, throughout his course of treatment.

      In June 2011, Appellant received a second opinion from Dr. Randall

Culp, an orthopedic surgeon. Dr. Culp ordered a CAT scan on Appellant’s wrists

and diagnosed Appellant with bilateral scaphoid fractures. Dr. Culp performed

surgery on both of Appellant’s wrists, placing a screw in each scaphoid bone

to promote healing. Appellant continued to experience problems with his right

scaphoid bone.

      In August 2016, Dr. Culp performed a bone-graft surgery on Appellant’s

right scaphoid bone. Unfortunately, this surgery did not correct Appellant’s

issues, and, in March 2017, Dr. Culp had to perform another surgery. This

time, Dr. Culp removed Appellant’s right scaphoid bone and fused several of

the other bones in Appellant’s wrist together. As a result, Appellant has only

partial movement in his right wrist.

      Appellant initiated litigation by filing a Praecipe for Writ of Summons on

June 14, 2013, followed by a Complaint on February 4, 2014. On July 11,

2016, Appellant filed a Motion for Spoliation Sanctions based on Dr. Byron’s

inability to produce copies of most of the x-rays Appellant underwent while in

Dr. Byron’s care. In response, Dr. Byron claimed that a flood in September

2011 destroyed all but one of Appellant’s x-rays. The only surviving x-ray was

from June 2011. On May 4, 2018, the trial court denied Appellant’s Motion.

      The court held pretrial conferences to decide Motions in Limine on

October 18 and 22, 2018. Several of the court’s rulings are at issue in this

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appeal. The court also conducted jury selection on October 22, 2018, during

which it refused to strike several jurors for cause despite Appellant urging it

to do so.

      Trial commenced on October 23, 2018. On October 29, 2018, the jury

returned a verdict in favor of Dr. Byron, finding that the treatment he provided

to Appellant met the standard of care. The jury did not address causation or

damages.

      On November 8, 2018, Appellant filed a Motion for Post-Trial Relief. On

February 28, 2019, the trial court denied Appellant’s Motion. The court entered

Judgment on April 11, 2019. Appellant filed a timely Notice of Appeal, and

both he and the trial court complied with Pennsylvania Rule of Appellate

Procedure 1925.

      Appellant raises the following issues on appeal:

      1. Whether the trial court erred when it permitted prospective
      jurors to be “rehabilitated” after they expressed their inability to
      be fair and impartial; and/or when the court denied Appellant's
      cause challenges to such jurors?

      2. Whether the trial court erred when it permitted Dr. Byron’s
      expert, Wayne Sebastianelli, M.D., to testify to areas outside the
      scope of his expertise and report?

      3. Whether the trial court erred when it denied Appellant the
      opportunity to cross[-]examine Dr. Byron . . . to challenge his
      defense in this case - that the Appellant's x-rays were purportedly
      destroyed by flood?

      4. Whether the trial court erred in its rulings with respect to the
      testimony of Appellant’s treating physician[,] Randall Culp,
      M.D.[,] including issues related to . . . demonstrative exhibits and
      issues on the standard of care?



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      5. Whether the trial court erred when it granted Dr. Byrons’ Motion
      in Limine and precluded Appellant’s vocational expert from
      testifying where Dr. Byron failed to show prejudice?

      6. Whether the trial court erred in precluding Appellant from
      presenting a PowerPoint Presentation during his opening
      statement?

      7. Whether the trial court erred in permitting evidence and
      testimony with respect to Appellant’s perceived delay in treatment
      and erred in its instructions to the jury with respect to this issue?

      8. Whether the trial court erred in permitting evidence and
      testimony with respect to Appellant’s perceived smoking and erred
      in its instructions to the jury with respect to this issue?

      [9.] Whether the trial court erred when it denied Appellant the
      opportunity to . . . utilize exhibits to challenge [Dr. Byron’s]
      defense in this case - that the Appellant's x-rays were purportedly
      destroyed by flood?

Appellant’s Br. at 10-11 (reordered for ease of analysis).

Issues 1-4: Appellant waived our consideration of these issues

      We begin by setting forth the rules for preserving and raising an issue

on appeal. To preserve an issue for appellate review, an appellant must raise

the contested issue in the trial court by motion, objection, offer of proof, or

other appropriate method. Pa.R.C.P. 227.1(b)(1). When the issue involves the

exclusion of evidence, the appellant must “inform the court of its substance

by an offer of proof, unless the substance was apparent from the context.”

Pa.R.E. 103(a)(2). This rule applies where the court restricts the scope of a

party’s cross-examination. Commonwealth v. Smyrnes, 

154 A.3d 741

, 752-

53 (Pa. 2017).




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      An appellant must also file a post-trial motion specifying the grounds for

relief. Pa.R.C.P. 227.1(b)(2). See Sahutsky v. H.H. Knoebel Sons, 

782 A.2d

996

, 1000 (Pa. 2001). “A post-trial motion must set forth the theories in

support thereof ‘so that the lower court will know what it is being asked to

decide.’” Pa.R.C.P. 227.1, cmt. (quoting Frank v. Peckich, 

391 A.2d 624

,

632-33 (Pa. Super. 1978)). “Grounds not specified [in the motion] are deemed

waived[.]” Pa.R.C.P. 227.1(b)(2).

      In addition, when required by the trial court, as in this case, the

appellant must file a Concise Statement of Matters Complained of on Appeal

pursuant to Pennsylvania Rule of Appellate Procedure 1925(b). The Rule

1925(b) Statement “shall concisely identify each error that the appellant

intends to assert with sufficient detail to identify the issue to be raised for the

judge.” Pa.R.A.P. 1925(b)(4)(ii). An appellant waives any issue not raised in

accordance with the provisions of Rule 1925.

Id. at 1925(b)(4)(vii).

      Finally, the appellant must develop arguments in his brief with citation

to the record and relevant authority. Pa.R.A.P. 2119(a). “We shall not develop

an argument for an appellant, nor shall we scour the record to find evidence

to support an argument[.]” Milby v. Pote, 

189 A.3d 1065

, 1079 (Pa. Super.

2018). To do so would place this Court “in the conflicting roles of advocate

and neutral arbiter.” Commonwealth v. Williams, 

782 A.2d 517

, 532 (Pa.

2001) (Castille, J., concurring). Therefore, an appellant waives any issue he

fails to develop sufficiently. Sephakis v. Pa. State Police Bureau of

Records and

Id., 214

A.3d 680, 686-87 (Pa. Super. 2019).

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        In his first issue, Appellant argues that the trial court erred when it

declined to strike several jurors for cause during jury selection. Appellant’s Br.

at 19-34. Appellant waived our consideration of this issue by failing to identify

in his Post-Trial Motion and Rule 1925(b) Statement which jurors he believes

the court should have precluded for cause. Pa.R.C.P. 227.1(b)(2); Pa.R.A.P.

1925(b)(4)(vii).

        In his second issue, Appellant alleges that the trial court erred by

allowing one of Dr. Byron’s experts, Dr. Wayne Sebastianelli, to testify outside

the scope of his expert reports in two respects. Appellant’s Br. at 55-56.

Appellant first argues, without citation to Dr. Sebastianelli’s expert reports,

that the court errantly allowed Dr. Sebastianelli to testify “regarding Dr. Culp’s

operative note [that] was not mentioned in either report[.]”

Id. at 56.

Appellant waived our consideration of this argument by failing to raise it in his

Post-Trial Motion. Pa.R.C.P. 227.1(b)(2).

        Appellant   further   argues,   without    specifically   identifying   any

objectionable testimony, that the court should have barred Dr. Sebastianelli

from testifying “with regard to films and/or images[.]” Appellant’s Br. at 56.

Several deficiencies require us to find that Appellant waived this argument as

well.

        First, Appellant failed to identify objectionable testimony with sufficient

specificity in his Post-Trial Motion. He alleged generally that the court erred

by allowing Dr. Sebastianelli to testify about his review of “images/films.”

Post-Trial Motion, filed 11/8/18, at ¶ 7. Appellant did not inform the court of

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which images or films he believed the court should have prevented Dr.

Sebastianelli from opining on. Thus, Appellant failed to satisfy Pa.R.C.P. 227.1.

       Additionally, Appellant failed to sufficiently develop his argument in his

Brief. Appellant states that the trial court should have barred Dr. Sebastianelli

from testifying “as to” CAT scans, MRI, and x-ray imaging. Appellant’s Br. at

56. In support, Appellant merely lists several citations to his reproduced

record without explaining which questions he believes were improper and why.

In other words, Appellant leaves to this Court to review the record, identify

objectionable testimony, and fashion his argument about how that testimony

is objectionable. We will not do so. 

Milby, 189 A.3d at 1079

; Commonwealth

v. Spotz, 

18 A.3d 244

, 323 (Pa. 2011) (finding waiver where appellant merely

listed seven citations to the record, each accompanied by an explanatory

phrase, to support argument that lower court erred). As a result of these

deficiencies, Appellant waived our consideration of his second issue.1

       In his third issue, Appellant avers that the trial court erred by ruling that

he could not ask Dr. Byron questions to imply that Dr. Byron intentionally

destroyed the missing x-rays. Appellant’s Br. at 43-47.



____________________________________________


1 To the extent that Appellant believes the court should have precluded Dr.
Sebastianelli from even uttering that Appellant underwent imaging studies,
we find this claim untenable. Dr. Sebastianelli stated that he based his report
on “review of records including medical chart, x-rays, depositions, and expert
reports[.]” Trial Ct. Op., at 68. Certainly, having reviewed Appellant’s medical
chart, Dr. Sebastianelli could state factually that Appellant underwent the
imaging reflected therein.

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      At the October 22, 2018 pretrial hearing, the trial court asked

Appellant’s counsel to identify evidence that counsel possessed to establish

that Dr. Byron purposefully destroyed the x-rays. N.T. Hearing, 10/22/18, at

51. Appellant’s counsel offered to make such a proffer in chambers, out of the

presence of defense counsel.

Id. However, the trial

court did not hold any

such ex parte meeting and Appellant’s counsel never made a proffer of this

evidence. The court ultimately ruled that Appellant could ask Dr. Byron factual

questions about the location and existence of the missing x-rays, but not imply

that Dr. Byron purposefully destroyed the x-rays.

Id. at 47-55.

      Appellant waived his challenge to this ruling by failing to make a proffer

as to the substance of the excluded evidence. 

Smyrnes, 154 A.3d at 752-53

.

Additionally, in his Brief, Appellant continues to fail to identify the evidence

that the trial court excluded, making it impossible for this Court to determine

if the court’s ruling affected the verdict. It is axiomatic that “[e]videntiary

rulings which did not affect the verdict will not provide a basis for relief.”

Cicconi Auto Body v. Nationwide Ins. Co., 

904 A.2d 933

, 937 (Pa. Super.

2006) (citations and brackets omitted).

      Appellant’s fourth issue relates to evidentiary decisions the trial court

made in relation to Dr. Culp’s videotaped deposition for use at trial. Appellant’s

Br. at 53-55. Before playing the deposition video for the jury, the court ruled

on objections the parties made during the deposition. Trial Ct. Op., at 53-54.

Appellant alleges that, as a result of these rulings, the court erroneously (1)

allowed Dr. Byron to ask Dr. Culp standard of care questions; (2) barred

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Appellant from asking Dr. Culp standard of care questions; and (3) barred

Appellant from utilizing a computer-generated animation with Dr. Culp.

Appellant’s Br. at 53-55.

       Unfortunately, neither the certified record nor Appellant’s reproduced

record include the transcript of Dr. Culp’s deposition. “The law of Pennsylvania

is well settled that matters which are not of record cannot be considered on

appeal.” Parr v. Ford Motor Co., 

109 A.3d 682

, 695 n. 10 (Pa. Super. 2014)

(citation omitted). Generally, “the responsibility rests upon the appellant to

ensure that the record certified on appeal is complete.” Commonwealth v.

Preston, 

904 A.2d 1

, 7 (Pa. Super. 2006). “It is not proper for [this] Court to

order transcripts nor is it the responsibility of the appellate courts to obtain

the necessary transcripts.”

Id. Appellant’s failure to

ensure the completeness

of the certified record hampers our review of his fourth issue, and we are

constrained to find that this issue is waived.2 See Commonwealth v.

Holston, 

211 A.3d 1264

, 1281 (Pa. Super. 2019) (finding waiver for

appellant’s failure to ensure complete certified record).

Issue 5: Appellant decided to proceed to trial without his vocational
expert and, therefore, fails to present a valid issue for our review

       Appellant identified his vocational expert, Dr. Jody Doherty, 18 days

before trial. Trial Ct. Op., 11/8/19, at 9. Dr. Byron filed a Motion in Limine

seeking to preclude her from testifying.

Id. at 9-10.

The court took the issue

____________________________________________


2 Additionally, in his Brief, Appellant fails to identify objectionable questions
the trial court allowed and proper questions the trial court barred.

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under advisement and, on October 19, 2018, provided Appellant with the

option to continue the trial to permit Dr. Byron to retain an opposing expert,

or proceed to trial without the benefit of Dr. Doherty’s testimony.

Id. at 10-

11.

Appellant elected to proceed to trial.

Id. at 11.

      Appellant alleges that the trial court erred by precluding his vocational

expert from testifying. Appellant’s Br. at 34-34-41. However, since Appellant

elected to proceed to trial without the aid of his vocational expert, it was

Appellant’s decision, not a trial court ruling, that precluded Dr. Doherty’s

testimony. Trial Ct. Op., at 9 (concluding that the court “did not actually

preclude[ Appellant’s] expert”). As a result, Appellant has no court order to

challenge and has not presented a valid issue for our review.

Issue 6: Appellant fails to present a challenge to the trial court’s ruling
that he could not show medical records and imaging to the jury during
opening argument

      On October 9, 2018, Appellant filed a Motion in Limine seeking

permission from the court to use a PowerPoint Presentation during his opening

argument. Motion, 10/9/18, at ¶¶ 9-18. The presentation was comprised of

numerous anatomical diagrams, and medical records and imaging. Appellant’s

Br. at 41.

      At the October 22, 2018 pretrial conference, the trial court heard

argument on the use of the presentation. N.T. Hearing, at 37-47. In response

to a dispute by Dr. Byron about the veracity of some of the anatomical

drawings, Appellant agreed to remove everything but “the x-rays, the records”

from the presentation.

Id. at 45.

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       The court then ruled that the parties could not show the jury medical

records and imaging during opening argument.

Id. It expressed concern

that

to allow otherwise would risk showing evidence to the jury that the court would

ultimately find inadmissible.

Id. at 43-47;

Trial Ct. Op., at 31-32.

      In his Brief, Appellant avers that the trial court erred by precluding him

from using a PowerPoint Presentation during his opening argument.

Appellant’s Br. at 41-43. He alleges that he “should have been free to decide

what was the most efficient and effective way for him to explain to the jury

what he believed the evidence would show.”

Id. at 42.

      Appellant’s argument does not address the trial court’s ruling. The trial

court decided that the parties could not show the jury medical records and

imaging during their opening arguments. See N.T. Hearing, 37-47; Trial Ct.

Op., at 28-35. Appellant does not dispute this ruling in his Brief. See

Appellant’s Br. at 41-43. Rather, Appellant argues that the trial court should

have permitted him to use a PowerPoint Presentation in his opening argument.

Id. The trial court

did not rule that Appellant could not use a PowerPoint

Presentation. Because Appellant has not demonstrated any basis for relief, we

shall not disturb the trial court’s ruling.

Issues 7 and 8: Appellant fails to prove that the trial court’s
evidentiary rulings caused him to suffer prejudice

      Appellant’s remaining issues involve trial court decisions on the

admissibility of evidence. Questions of admissibility lie within the trial court’s

sound discretion and we will not disturb the court’s decision absent a clear


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abuse of discretion. 

Parr, 109 A.3d at 690

. “[A]n abuse of discretion may not

be found merely because an appellate court might have reached a different

conclusion, but requires a manifest unreasonableness, or partiality, prejudice,

bias, or ill-will, or such lack of support so as to be clearly erroneous.”

Keystone Dedicated Logistics, LLC v. JGB Enters., Inc., 

77 A.3d 1

, 11

(Pa. Super. 2013) (citation omitted).

      “In order to find that the trial court's evidentiary rulings constituted

reversible error, such rulings must not only have been erroneous but must

also have been harmful to the complaining party.” Oxford Presbyterian

Church v. Weil-McLain Co., 

815 A.2d 1094

, 1100 (Pa. Super. 2003) (citation

omitted). An appellant “must therefore show error in the evidentiary ruling

and resulting prejudice, thus constituting an abuse of discretion by the lower

court.”

Id. (citation omitted). “An

evidentiary ruling which did not affect the

verdict will not provide a basis for disturbing the jury’s judgment.” Hart v.

W.H. Stewart, Inc., 

564 A.2d 1250

, 1252 (Pa. 1989). More explicitly, “an

erroneous evidentiary ruling on damages, in a case where the jury has found

for the defendant on the liability issue, is harmless and does not entitle the

plaintiff to a new trial.”

Id.

In his seventh

and eighth issues, Appellant assails trial court rulings that

permitted Dr. Byron to introduce evidence of Appellant’s delay in seeking

treatment and smoking history.

Id. at 47-50.

The court admitted this evidence

of Appellant’s conduct as relevant to causation and damages, respectively.

Trial Ct. Op., at 45-46, 51-53. However, the jury did not reach causation or

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damages.

Id. at 4.

Instead, the jury determined that Dr. Byron’s conduct did

not breach the standard of care.

Id. Appellant fails to

plead and prove that

this evidence of Appellant’s conduct impacted the jury verdict, which was

based solely on Dr. Byron’s conduct. As a result, Appellant’s seventh and

eighth issues fail.3

Issue 9: The trial court properly exercised its discretion in precluding
Appellant from cross-examining Dr. Byron using a letter authored by
Appellant’s father

       On August 21, 2011, Appellant’s father sent Dr. Byron a letter stating

that he refused to pay for x-rays. Trial Ct. Op. at 72; N.T. Trial, at 349. At

trial, Appellant attempted to cross-examine Dr. Byron using a redacted version

of this letter. N.T. Trial, at 346. In response to Dr. Byron’s objection, Appellant

explained that he intended to establish that the letter put Dr. Byron “on notice

that these x-rays are an issue[.]”

Id. at 348-49.

The court sustained Dr.

Byron’s objection, preventing Appellant from using the letter.

Id. at 348;

Trial

Ct. Op., at 69-78.

       Appellant alleges that the letter “was relevant and perfectly suited and

appropriate for cross-examination” and, therefore the court erred by

precluding it. Appellant’s Br. at 48. We disagree.



____________________________________________


3 Appellant also assails the trial court’s instruction to the jury that it could
consider Appellant’s delay as evidence of his comparative negligence and
Appellant’s smoking for life expectancy. See Appellant’s Br. at 47-50. As with
the underlying evidence itself, because the jury did not reach causation or
damages, these instructions could not have impacted the jury’s verdict.

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      Dr. Byron being “on notice” about the importance of the missing x-rays

was relevant only to Appellant’s spoliation claim. See PTSI, Inc. v. Haley,

71 A.3d 304

, 315-16 (Pa. Super. 2013) (“Spoliation [occurs when] a party

who has notice that evidence is relevant to litigation . . . proceeds to destroy

[it.]” (citations omitted)). Since the trial court denied Appellant’s Motion for

Spoliation Sanctions on May 4, 2018, well before trial, the letter was not

relevant to any issue in the case. It was, therefore, within the trial court’s

discretion to bar it. Pa.R.E. 402 (“Evidence that is not relevant is not

admissible.”).

Conclusion

      In sum, Appellant waived this Court’s consideration of his first, second,

third, and fourth issues, his fifth and sixth issues do not present valid matters

for our review, and he failed to prove that the trial court’s evidentiary rulings

underlying his seventh and eighth issues caused him to suffer prejudice. We

discern no abuse of discretion in the trial court’s ruling underlying Appellant’s

ninth issue.

      Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 03/18/2021


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