Volume 58, No. 36

 

PUBLIC NOTICES

DECEDENTS’ ESTATES

ARTICLES OF INCORPORATION
CHANGE OF NAME

NOTICE OF PRIVATE SALE

 

TABLE OF CONTENTS

Jennifer Wentzel, Individually and as Administratrix of the Estate of Gregory D. Wentzel, v. WellSpan Good Samaritan Hospital, Lebanon Emergency Medical Associates, PLLC, and Marc M. Bonin, D.O.

 

NOTICE IS HEREBY GIVEN that Letters Testamentary or of Administration have been granted in the following estates. All persons indebted to the said estate are required to make payment, and those having claims or demands to present the same without delay to the administrators or executors named.

 

FIRST PUBLICATION

 

ESTATE OF DOLORES V. UHLER, late of Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Debra A. Binkley, Executrix

 

John M. Zimmerman, Esquire

Zimmerman Law Office

466 Jonestown Road

Jonestown, PA 17038

 

ESTATE OF JOHN RUTT A/K/A JOHN G. RUTT, late of South Lebanon Township, Lebanon County, Pennsylvania, deceased. Letters of Administration have been granted to the undersigned Administrator.

 

Stephen J. Mascherino, Administrator

 

Richard C. Seneca, Esquire

Seneca Law

P.O. Box 333

Lewisberry, PA  17339-0333

 

ESTATE OF LARRY H. ARNOLD, late of Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Bonnie L. Wallish, Executor

 

George E. Christianson, Esquire

Christianson Meyer

411 Chestnut Street

Lebanon, PA 17042

 

ESTATE OF ROBERTA L. GRISWOLD, late of Heidelberg Township, Lebanon County, Pennsylvania, deceased 1/23/21. Letters Testamentary have been granted to the undersigned Executor.

Kirk A. Griswold, Executor

210 Chapel Road

Newmanstown, PA 17073

 

Gerald W. Brann

Brann, Williams, Caldwell & Blaney

1090 West Main Street

Troy, PA 16947

 

ESTATE OF MARY C. MEININGER, late of the City of Lebanon, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

Scott N. Ream, Executor

 

Kevin M. Richards, Esquire

P.O. Box 1140

Lebanon, PA 17042-1140

 

ESTATE OF PETER F. HEWITT, late of Mount Gretna Borough, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

Gillian Marie Hewitt, Executrix

 

Kevin M. Richards, Esquire

P.O. Box 1140

Lebanon, PA 17042-1140

 

ESTATE OF ANNA M. WAGNER, late of Annville Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

Mervin L. Wagner, Executor

 

Kevin M. Richards, Esquire

P.O. Box 1140

Lebanon, PA 17042-1140

 

ESTATE OF ELIZABETH HEILIGMAN, late of Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Fulton Financial Advisors, N.A., Executor

 

George E. Christianson, Esquire

Christianson Meyer

411 Chestnut Street

Lebanon, PA 17042

 

ESTATE OF CLARENCE G. BAILEY, late of Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Fulton Financial Advisors, N.A., Executor

 

George E. Christianson, Esquire

Christianson Meyer

411 Chestnut Street

Lebanon, PA 17042

 

ESTATE OF VERNON D. HERR, late of Heidelberg Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executors.

 

Daryl T. Herr, Executor

1 Lost Acre Lane

Newmanstown, PA 17073

 

Nevin L. Herr, Executor

433 Sheephill Road

Newmanstown, PA 17073

 

Vernon L. Herr, Executor

2119 Walnut Street

Lebanon, PA 17042

 

Kenneth C. Sandoe, Esquire

Steiner & Sandoe, Attorneys

36 West Main Avenue

Myerstown, PA 17067

 

ESTATE OF JUDITH A. KENDIG A/K/A JUDITH ANN KENDIG, late of the City of Lebanon, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

Fulton Bank, N.A., Executor

 

Kevin M. Richards, Esquire

P.O. Box 1140

Lebanon, PA 17042-1140

 

ESTATE OF MILDRED M. RUHL, late of Annville Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

David M. Ruhl, Executor

 

Jon F. Arnold, Esquire

410 Chestnut Street

Lebanon, PA 17042

 

SECOND PUBLICATION

 

ESTATE OF GRETCHEN A. CAMERON A/K/A GRETCHEN ANN CAMERON, late of North Londonderry Township, Lebanon County, Pennsylvania, deceased 2/24/21. Letters Testamentary have been granted to the undersigned Executor.

 

Raymond T. Cameron, Executor

 

Kendra A. Mohr, Esquire

Pannebaker & Mohr, P.C.

4000 Vine St., Ste. 101

Middletown, PA 17057

 

ESTATE OF JOHN G. BECHTEL, late of Annville Township, Lebanon County, Pennsylvania, deceased 6/8/19. Letters Testamentary have been granted to the undersigned Executrix.

 

Linda Bechtel, Executrix

 

Kristen L. Behrens, Esquire

Dilworth Paxson LLP

457 Haddonfield Rd., Ste. 700

Cherry Hill, NJ 08002

 

ESTATE OF RUTH LEE CARTER, late of North Londonderry Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Mary Karen Newstadt, Executrix

508 Hedge Row Lane

Palmyra, PA 17078

 

David R. Warner, Esquire

Buzgon Davis Law Offices

P.O. Box 49

525 South Eighth Street

Lebanon, PA 17042

 

ESTATE OF ALAN K. THOMAS A/K/A ALAN KEITH THOMAS, late of North Cornwall Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Michael A. Thomas, Executor

117 Pine Street

Lebanon, PA 17042

 

Patrick M. Reb, Esquire

547 South 10^th Street

Lebanon, PA 17042

 

ESTATE OF MARY PHYLLIS KOHR, late of South Lebanon Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

 

Shawn Renee Kinney, Executrix

1998 Center Street

Lebanon, PA 17042

 

Edward J. Coyle, Esquire

Buzgon Davis Law Offices

P.O. Box 49

525 South Eighth Street

Lebanon, PA 17042

 

ESTATE OF BARBARA MAE GOWER A/K/A BARBARA M. GOWER, late of North Cornwall Township, Lebanon County, Pennsylvania, deceased 9/12/20. Letters of Administration have been granted to the undersigned Administratrix.

 

Barbara Louise Clauser, Administratrix

758 Carl Dr.

New Braunfels, TX 78130

 

Jennifer M. Merx,

Skarlatos Zonarich,

320 Market St., Ste. 600W

Harrisburg, PA 17101

 

ESTATE OF VELMA RITA GOE A/K/A V. RITA GOE, late of South Lebanon Township, Lebanon County, Pennsylvania, deceased 8/13/19. Letters of Administration CTA have been granted to the undersigned Administrator.

 

Megan Castor, Administratrix CTA

550 Charles St.

Lebanon, PA 17042

 

Kathleen B. Murren,

Skarlatos Zonarich,

320 Market St., Ste. 600W

Harrisburg, PA 17101

 

ESTATE OF JOANN E. BEHNEY, late of Bethel Township, Lebanon County, Pennsylvania, deceased. Letters of Administration have been granted to the undersigned Administrators.

 

Ricky L. Behney, Administrator

8 Bungalow Street

Richland, PA 17087

 

Rodney L. Behney, Administrator

1049 E. Old Cumberland Street

Lebanon, PA 17042

 

Rhonda L. Olesh, Administrator

1051 Meckville Road

Fredericksburg, PA 17026

 

Rochelle L. Schucker, Administrator

85 Deck Drive

Myerstown, PA 17067

 

Rory L. Behney, Administrator

8 Cottage Road

Myerstown, PA 17067

 

Renee L. Smith, Administrator

1393 Greble Road

Myerstown, PA 17067

 

Timothy T. Engler, Esquire

Steiner & Sandoe, Attorneys

36 West Main Avenue,

Myerstown, PA, 17067

 

ESTATE OF SANDRA E. SMITH, late of South Lebanon Township, Lebanon County, Pennsylvania, deceased. Letters of Administration have been granted to the undersigned Co-Administrators.

Lynnette Smith, Administatrix

Annette MacNamara, Administatrix

 

Kevin M. Richards, Esquire

P.O. Box 1140

Lebanon, PA 17042-1140

 

ESTATE OF MILDRED S. FRY, late of the City of Lebanon, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executors.

 

Joanne Wilson, Executor

77 Kricks Mill Road

Womelsdorf, PA 19567

 

Dennis Fry, Executor

66 Kricks Mill Road

Womelsdorf, PA 19567

 

Roseanne Kreitz, Executor

86 Kricks Mill Road

Womelsdorf, PA 19567

 

Kenneth C. Sandoe, Esquire

Steiner & Sandoe, Attorneys

36 West Main Avenue

Myerstown, PA 17067

 

ESTATE OF JANET R. MOORE, late of the Township of Jackson, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

 

Rebecca K. Smith, Executor

107 E. Conestoga Street

New Holland, PA 17557

 

Kenneth C. Sandoe, Esquire

Steiner & Sandoe, Attorneys

36 West Main Avenue

Myerstown, PA 17067

 

ESTATE OF GARY L. SMITH, late of North Londonderry Township, Lebanon County, Pennsylvania, deceased on January 29, 2021. Letters Testamentary have been granted to the undersigned Executor.

Clark Kristofor Olson-Smith, Executor

2626 Farnam St.

Davenport, IA 52803

 

Jean D. Seibert, Esquire

Caldwell & Kearns, PC

3631 N. Front St.

Harrisburg, PA 17110

 

THIRD PUBLICATION

 

ESTATE OF CARL E. WHITE, late of Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executor.

Douglas C. White, Executor

 

Anthony J. Fitzgibbons, Esquire

279 North Zinn’s Mill Road

Lebanon, PA 17042

717-279-8313

 

ESTATE OF MARY K. WINTERS, late of Palmyra Borough, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Co-Executrixes.

 

Geri R. Bower and Grace A. Warner, Co-Executrixes

 

Gerald J. Brinser, Esquire

1. O. Box 323

Palmyra, PA 17078

 

ESTATE OF GREGORY MCKINNON DAVIS, late of the City of Lebanon, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

Jennifer Ann Davis, Executrix

 

Kevin M. Richards, Esquire

P.O. Box 1140

Lebanon, PA 17042-1140

 

ESTATE OF BETTE JANE TARASCHI A/K/A BETTE J. TARASCHI, late of East Hanover Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

Sheri Koberlein, Executrix

1103 Bridge St.

New Cumberland, PA 17070

 

Scott L. Grenoble, Esquire

Buzgon Davis Law Offices

P.O. Box 49

525 South Eighth Street

Lebanon, PA 17042

 

ESTATE OF LOUIS VASITY, late of South Lebanon Township, Lebanon County, Pennsylvania, deceased. Letters Testamentary have been granted to the undersigned Executrix.

Desanie D. Miller, Executrix

844 Old Mount Gretna Road

Lebanon, PA 17042

 

Thomas S. Long, Esquire

Long Brightbill

315 South Eighth Street

Lebanon, PA  17042

 

ARTICLES OF INCORPORATION

 

NONPROFIT CORPORATION – Notice is hereby given that PINE LAWN

MENNONITE CHAPEL was incorporated on 3/30/21, under the provisions of the PA

Nonprofit Corp. Law of 1988, as amended. The corp. is organized exclusively for

charitable, religious, educational, and scientific purposes within the meaning of IRC

Section 501(c)(3). Nevin D. Beiler, Solicitor, Beiler Legal Services PC, 105 S. Hoover

Ave., New Holland, PA 17557

 

CHANGE OF NAME

 

IN THE

COURT OF COMMON PLEAS OF LEBANON COUNTY

PENNSYLVANIA

CIVIL ACTION – LAW

_________________

In Re: Change of Name of                                                                  :

1. M. W.,                                     :                                               No. 2021-00318

A minor                                                                                                                                   :

 

NOTICE

 

Notice is hereby given that on the 25th day of March, 2021, the Petition of Amber N. Wolf was filed in the above Court requesting an Order to change the name of K. M. W. to K. W. G. The Court has fixed the 28^th day of April, 2021, at 10:30a.m. before The Honorable Samuel A. Kline in Courtroom No. 2 of the Lebanon County Municipal Building, 400 South 8th Street, Lebanon, Pennsylvania, as the time and place for the Hearing of said Petition, where any and all interested parties may appear and show cause, if any they have, why the request of Petitioner should not be granted.

 

Corey M. Lamoureux, Esquire

 

Reilly Wolfson

1601 Cornwall Road

Lebanon, PA 17042

(717) 273-3733

Attorney for Petitioner

NOTICE OF PRIVATE SALE

 

In Re:                                                                                                                          :           IN THE COURT OF COMMON PLEAS OF

Petition of the Board of School Directors                  :           LEBANON COUNTY, PENNSYLVANIA

Of the Lebanon School District for                            :           CIVIL ACTION – LAW

Approval of a Private Sale of Real Estate                  :           NO. 2021-00138

 

NOTICE OF PRIVATE SALE

 

NOTICE is hereby given that on February 9, 2021, the Board of Directors of the Lebanon School District, filed a Petition for the sale of the following tracts of real estate:

Northwest Elementary School containing 2.65 acres located on the northwest corner of the intersection of North Ninth Street and Maple Street in Lebanon City; and the second parcel of land containing .95 acres, adjacent to the elementary school building, the identified tax parcel I.D. numbers are 07-2336938-372822 and 07-2336473-372837, respectively.

The Court has fixed the 6^th day of May, 2021, at 1:30 o’clock P.M. at Lebanon County Court of Common Pleas, located at 400 South Eighth Street, Lebanon, Pennsylvania 17042, as the time and place for the hearing on said petition when and where all persons interested may appear and show cause, if any they have, why the prayer of the petitioner should not be granted.

 

Michael S. Bechtold, Esquire

Buzgon Davis Law Offices

525 South Eighth Street

Lebanon, PA 17042-0049

Phone: (717) 274-1421

E-mail: Bechtold@buzgondavis.com

Solicitor for Lebanon School District

 

Jennifer Wentzel, Individually and as Administratrix of the Estate of Gregory D. Wentzel, v. WellSpan Good Samaritan Hospital, Lebanon Emergency Medical Associates, PLLC, and Marc M. Bonin, D.O.

 

Civil Action-Law-Wrongful Death-Medical Malpractice-Emergency Room Care-Motion in Limine-Pa.R.E Rule 403-Evidence-Admissibility-Probative Value-Prejudicial Effect-Expert Testimony-Standard of Care-Medical Care Availability and Reduction of Error Act-Qualification to Render Testimony-Recovery of Child for Parental Loss-Life Care Plan-Lay Testimony as to Loss-Pain and Suffering of Decedent-Circumstantial Evidence

 

A Complaint was filed alleging that Gregory D. Wentzel (“Decedent”) was treated at the Emergency Room of the WellSpan Good Samaritan Hospital from which he was discharged with a diagnosis of pneumonia.  Decedent passed away approximately seventeen (17) hours later.  Plaintiff alleges that Decedent experienced a ruptured dissecting aorta that should have been discovered at the Emergency Room that led to his death.  Both parties have filed Motions in Limine in anticipation of trial including requests to preclude expert testimony, to exclude a Life Care Plan assigning dollar values to the services needed to provide care for Decedent’s minor autistic child, evidence by friends and family as to the impact of Decedent’s death upon his family and establishment of Decedent’s pain and suffering by circumstantial evidence.

 

1. A motion in limine is a request for a pretrial evidentiary ruling.

 

2. Pa.R.E. Rule 403 provides that the Court may exclude relevant evidence if its probative value is outweighed by unfair prejudice, confusion, undue delay or needless presentation of cumulative evidence.

 

3. Since the pretrial record almost necessarily will be inadequate for making a decision with regard to the probative versus prejudicial value of evidence, Rule 403 is a trial oriented rule.

 

4. The Court will not adjudicate any Rule 403 objection in advance of trial in light of the Court’s limited insight into what will occur at trial.

 

5. Expert testimony plays a defining role in a medical negligence action because liability depends upon a breach of the standard of care, and the standard of care in most instances is defined by a testifying expert physician.

 

6. The Medical Care Availability and Reduction of Error (“MCARE”) Act, 40 P.S. § 1303.101 et seq., requires that a proffered expert possess an unrestricted physician’s license in the United States, be engaged in active clinical practice or teaching, practice in the same subspecialty as the defendant physician or in a subspecialty that has a substantially similar standard of care and be board certified by the same board as the defendant physician.

 

7. MCARE also permits a court to receive expert testimony pertaining to care that was undertaken by the defendant physician that was not within the physician’s specialty or competence and to allow testimony from an expert who practices in a related field of medicine.

 

8. In determining whether to permit testimony by a medical expert, the Court must determine the following: (1) the issues; (2) the specialty of the defendant physician; (3) whether the specialty of plaintiff’s expert is identical to the specialty of the defendant physician; (4) whether the defendant physician rendered services outside of his or her subspecialty; and (5) whether the proffered expert’s specialty is related to that of defendant physician if the proffered expert does not practice in the identical board certification.

 

9. Unless the proposed experts of the parties who are specialists are board certified in emergency medicine, they will not be permitted to opine conclusions pertaining to how a generalist such as an emergency room physician should go about his or her duties absent additional information to the contrary via voir dire.

 

10. Pennsylvania law has created two (2) categories of recovery for a negligently caused death: a survival action and a wrongful death action.

 

11. A survival action enables a decedent’s estate to recover monetary damages that would have been recoverable directly by the decedent had the decedent lived.

 

12. A wrongful death action does not compensate the decedent. It compensates the survivors for damages that they sustained as a result of the decedent’s death.

 

13. In a wrongful death action, the value of life itself is not per se compensable. Grief suffered by family members is not a proper component of wrongful death damages.

 

14. The law clearly prohibits duplicative recovery in both a wrongful death and a survival claim, as the ultimate goal of a wrongful death claim is to measure the loss suffered by the family members and not the inherent loss suffered by the victim of a wrongfully caused death.

 

15. A child may recover for the loss of services provided by a parent including amorphous parental blessings such as love, guidance, tutelage, moral upbringing, companionship, comfort and support, as well as more concretely measured parental services such as provision of shelter, food, clothing, medical care and recreation.

 

16.  Given the purpose of wrongful death damages, it is completely appropriate for Plaintiff to focus upon how Decedent’s autistic son was impacted by his father’s death.

 

17. Despite the fact that the Life Care Plan proffered by Plaintiff focuses upon how the child’s needs can be treated ideally with the availability of unlimited resources as opposed to how the child’s needs would have been met had Decedent lived, Plaintiff should be permitted to present the totality of her claim for wrongful death damages for evaluation by the jury in determining what is fair.

 

18. Testimony of friends and family with direct knowledge concerning the impact of Decedent’s death upon his family is not impermissible lay testimony on an issue for which qualification and competence is required.

 

19. Generally speaking, any disputed fact can be proven or refuted by the use of circumstantial evidence.

 

20. Pennsylvania’s Appellate Courts have determined that pain can be established circumstantially.

 

21. A lack of direct evidence does not compel preclusion of Plaintiff from seeking damages for Decedent’s pain and suffering, which is an issue that will be reserved for trial.

 

L.C.C.C.P. No. 2017-01619, Opinion by Bradford H. Charles, Judge, July 1, 2020.

 

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY

PENNSYLVANIA

 

CIVIL ACTION – LAW

 

JENNIFER WENTZEL, Individually              :  NO. 2017-01619

And as Administratrix of the ESTATE :

Of GREGORY D. WENTZEL                                            :

                                                Plaintiff                                               :              

                                                                                                                :                                                                                                                               v.                                                                            :              

                                                                                                                :              

WELLSPAN GOOD SAMARITAN                 :

HOSPITAL, LEBANON EMERGENCY           :

MEDICAL ASSOCIATES, PLLC, and              :

MARC M. BONIN, D.O.,                                 :

                                                Defendants                        :

                               

O R D E R

 

AND NOW, this 1^st day of July, 2020, in accordance with the attached Opinion, the Order of this Court is as follows:

1. A decision regarding admissibility of expert testimony will be deferred to trial. However, the principles articulated in the attached Opinion will govern final decisions regarding qualifications of experts and admissibility of expert testimony.
2. DEFENDANTS’ Motion In Limine seeking to exclude evidence of a Life Care Plan for Gregory Wentzel’s son is DENIED.
3. DEFENDANTS’ Motion In Limine seeking to exclude testimony regarding the impact of Gregory Wentzel’s death on his family is DENIED.
4. WENTZEL’s Motion In Limine seeking to exclude reference to COVID-19 is GRANTED.
5. DEFENDANTS’ Motion In Limine seeking to exclude a radiology technician form filed by Kylie Spickler is DENIED.
6. WENTZEL’s Motion In Limine seeking to exclude hearsay testimony during a conversation between Dr. Jeffrey Yocum and Dr. Marc Bonin is GRANTED.
7. DEFENDANTS’ Motion In Limine seeking to preclude autopsy photos is DEFERRED until trial.
8. DEFENDANTS’ Motion In Limine seeking to exclude a two-minute excerpt of an interview between Dr. Annie Steinberg and Gregory Wentzel’s son is DEFERRED until trial.
9. DEFENDANTS’ Motion In Limine seeking to exclude a memorial videotape from Gregory Wentzel’s co-workers is DEFERRED until trial.
10. DEFENDANTS’ Motion In Limine seeking to exclude grief a s a measure of damages is GRANTED in part and DENIED in part in accordance with the attached Opinion.
11. DEFENDANTS’ Motion In Limine seeking to exclude evidence of Gregory Wentzel’s pain and suffering is DENIED. A final decision regarding recoverability of damages for Gregory Wentzel’s pain and suffering will be deferred until the time of trial.

 

BY THE COURT:

 

 

______________________,J.

BRADFORD H. CHARLES

 

 

BHC/pmd

 

cc:           Thomas Hall, Esq.// 415 North Duke Street, Lancaster PA 17602

Dean Murtaugh, Esq. & Chilton Goebels, III, Esq.// The Bellevue, Suite 500, 200 South Broad Street, Philadelphia PA 19102

Court Administration

 

TABLE OF CONTENTS

 

 

    Preamble                                                                                                                                        1

 

 

1. Brief Summary of Facts                                                 2

 

1. Issues 2-3

 

• Scope of Motions In Limine                                         3-6

 

1. Discussion 7-38

 

1. Expert Witnesses                                                 7-22
2. Dr. Robert Bojar 15-16
3. Dr. Robert Boova 16
4. Dr. Brian Le 17-18
5. Dr. Jonathan Berlin 18-21
6. Dr. David Auerbach 21-22

 

1. Life Care Plan                                                         22-28

 

1. Family Damages                                                 29

 

1. Arguments Pertaining to COVID-19 30

 

1. Radiology Intake Form 30-31

 

1. Statements of Coroner 31-32

 

1. Autopsy Photographs 32

 

1. Interview Excerpt 32-34

 

1. Memorial Video from Co-Workers 34

 

1. Grief as a Measure of Damages 35-36

 

1. Gregory Wentzel’s Pain and Suffering 36-38

 

1. Conclusion 38-39

 

 

 

 

 

 

 

 

 

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY

PENNSYLVANIA

 

CIVIL ACTION – LAW

 

 

JENNIFER WENTZEL, Individually              :  NO. 2017-01619

And as Administratrix of the ESTATE :

Of GREGORY D. WENTZEL                                            :

                                                Plaintiff                                               :              

                                                                                                                :                                                                                                                               v.                                                                            :              

                                                                                                                :              

LEBANON EMERGENCY                                 :

MEDICAL ASSOCIATES, PLLC, and              :

MARC M. BONIN, D.O.,                                 :

                                                Defendants                        :

 

APPEARANCES:

 

Thomas Hall, Esquire                                                                     For Plaintiff

 

Dean Murtaugh, Esquire. &                                                         For Defendants

Chilton Goebels, III, Esquire                            

 

 

 

OPINION BY CHARLES, J., July 1, 2020

 

The above-referenced case is scheduled for a jury trial on July 13, 2020.  In accordance with a pre-trial scheduling order, both parties have submitted numerous Motions in Limine.  We issue this Opinion to address or defer the multiple issues submitted by the parties.

 

 

1. BRIEF SUMMARY OF FACTS

On March 6, 2017, fifty-year old Gregory Wentzel appeared at the Lebanon Good Samaritan Hospital Emergency Room.  He was seen and discharged with a diagnosis of pneumonia.  Mr. Wentzel was sent home.  Approximately seventeen (17) hours later, he passed away.

According to Plaintiff, Mr. Wentzel suffered from a dissecting aorta that ruptured and caused his death.  Plaintiff believes that the dissecting aorta should have been discovered when Mr. Wentzel was in the hospital Emergency Room.  The Defendants argue that they complied with the applicable standard of care and that the dissecting aorta was not something that could have been readily discovered with the standard of care having been followed.  In addition, the Defendants dispute causation.

 

 

1. ISSUES

Plaintiff Jennifer Wentzel (hereafter WENTZEL) has filed two Omnibus Motions in Limine encompassing seven (7) different arguments.  Lebanon Emergency Medical Associates  & Dr, Marc Bonin (hereafter DEFENDANTS) have filed nine (9) different Motions in Limine.  Because some of the parties’ arguments are related, we will list the issues to be discussed within this Opinion as follows:

1. Motions filed by both sides to limit or exclude testimony from experts hired by the opposing party.
2. DEFENDANTS’ Motion seeking to preclude admission of a Life care Plan. Pertaining to Gregory Wentzel’s autistic son.
3. DEFENDANTS’ Motion to Limit or Preclude Evidence regarding the impact of Gregory Wentzel’s death on his family.
4. WENTZEL’s Motion to Exclude Testimony about COVID-19.
5. DEFENDANTS’ Motion to Preclude Testimony contained on a technician’s intake form.
6. WENTZEL’s Motion to Exclude Hearsay Statements of the Lebanon Coroner.
7. DEFENDANTS’ Motion to Exclude autopsy photos.
8. DEFENDANTS’ Motion to Exclude an excerpt from an interview of Mr. Wentzel’s autistic son.
9. DEFENDANTS’ Motion to Exclude a memorial video prepared by Mr. Wentzel’s co-workers.

• DEFENDANTS’ Motion to Preclude Evidence regarding pain and suffering of Gregory Wentzel.

 

 

III.    SCOPE OF MOTIONS IN LIMINE

A Motion in Limine is a request for a pre-trial evidentiary ruling.  From a very general perspective, we as a Court appreciate Motions in Limine because it gives us a chance to research, contemplate and analyze potentially difficult issues of evidence admissibility when the pressures and exigencies of a trial in progress are not yet upon us.  That being said, there is a point in time where parties attempt to throw a bunch of legal arguments against a proverbial wall in hopes that something will stick.  Rarely will it.

In this case, there are two important In Limine issues that we have taken considerable time to research and analyze:

• Both sides’ Motions Seeking to Limit or Preclude Testimony of experts retained by the opposing party; and
• DEFENDANTS’ Motion to Preclude or Limit Testimony about damages suffered by Gregory Wentzel’s family and autistic son.

As will be obvious by examining the number of pages we take to address the above issues, we have considered them to be important to a fair resolution of the above dispute.  On the other hand, we will devote less time and space to other In Limine requests that we view as far less significant.

Before we move forward to address the arguments of the parties, we will declare up front that no pre-trial ruling regarding Pa.R.Ev. 403 will be rendered.  Pa.R.Ev. 403 states: “The Court may exclude relevant evidence if its probative value is outweighed by…unfair prejudice, [confusion], undue delay…or needlessly presenting cumulative evidence.”  Within multiple Motions in Limine, the parties invoke Pa.R.Ev. 403

Evidence will not be prohibited as unduly prejudicial merely because it is harmful to a party.  See, e.g. Leahy v. McClain, 732 A.2d 619 (Pa. Super. 1999).  “Unfair prejudice supporting exclusion of relevant evidence means a tendency to suggest a decision on an improper basis or divert the jury’s attention away from its duty of weighing the evidence impartially.” Parr v. Ford Motor Company, 109 A.3d 682,696 (Pa. Super. 2014).  Citing Commonwealth v. Wright, 961 A.2d 119 (Pa. 2008) “The law ‘does not require a court to sanitize a trial to eliminate all unpleasant facts from the jury’s consideration where those facts are relevant to the issues at hand…” Smith v. Morrison, 47 A.3d 131, 137 (Pa. Super. 2012). Citing Commonwealth v. Page, 965 A.2d 1212 (Pa. Super. 2009).

As is obvious from the above, a “probative value versus prejudicial effect” analysis requires a court to analyze the totality of evidence presented.  At this point, this Court has not heard the testimony of one single witness, nor do we pretend to have prescient knowledge about how this trial will unfold.  Stated simply, we lack insight at this point to fairly undertake a “probative value versus prejudicial effect” analysis.

The United States Supreme Court has declared that a “prejudicial effect versus probative value” analysis “requires a fact-intensive, context-specific inquiry.”  Sprint/United Management Company v. Mendelsohn, 552 U.S. 379, 128 S.Ct. 1140 170 L.Ed. 2d 1 (2008).  Pennsylvania’s Supreme Court has declared: “Since the pre-trial record will almost necessarily be inadequate for making a decision based upon an as-yet unknown trial tableau,…Rule 403 is a “trial-oriented rule.”  Commonwealth v. Hicks, 91 A.3d 47, 53 (Pa. 2014).  Pennsylvania’s Supreme Court expounded on this opinion by stating:

“Here, the trial court excluded proffered testimony pre-trial pursuant to Rule 403, a rule that, as explained infra, is generally not susceptible to accurate pre-trial evaluation.  Unlike other rules of evidence, Rule 403 requires a trial court to weigh probative value and prejudice – the cost and benefits of relevant evidence – viewing it as part of a whole and not in isolation.  Inherent in the rule is the assumption that the Court has an adequate record, one that will mirror or provide great insight into what will develop at trial.  In the majority of cases, and particularly manifested in this one, the trial court has no way of knowing beforehand exactly what evidence will be presented at trial.  Depending upon the case and the inevitable vagaries of litigation, the pre-trial record may be entirely different than the record that eventuates as matters unfold.  Even if the evidence the parties intend to present is set, a trial rarely follows the anticipated script.  The actual value of evidence may differ substantially from pre-trial expectations, depending on all manner of factors, such as the availability, appearance, memory, or demeanor of a witness, admissions on cross-examination, the defense theory, or the defendant’s decision whether or not to testify.  Even a relatively developed pre-trial record will be of limited utility in predicting the probative value or prejudice a particular piece of evidence will ultimately have.”

 

Id at page 52-53.

Given our limited insight into what will occur at trial, and based upon Hicks, we will not adjudicate any Rule 403 objection in advance of trial.  Although we will discuss relevance within this Opinion, we will not balance relevant information against prejudicial effect until the time of trial.  Effectively, we decline today to rule on any Rule 403 objection.

 

 

 

 

1. DISCUSSION
2. Expert Witnesses

Expert testimony is of critical importance in any medical malpractice case.  As the United States District Court for the Eastern District of Pennsylvania put it: “Expert testimony plays a defining role in a medical negligence action because liability depends upon a breach of the standard of care, and the standard of care, in most instances, is defined by a testifying expert physician.”  Estate of Goldberg v. Nimotyn, 193 F.Supp.3d 482, 489 (E.D. Pa. 2016).  Without properly admitted expert testimony, a plaintiff’s cause of action will ultimately fail as a matter of law.  See, e.g. Wexler v. Hecht, 847 A.2d 95 (Pa. Super. 2004), affirmed that 928 A.2d 973 (Pa. 2005);  George v. Ellis, 911 A.2d 121 (Pa. Super. 2006); Cimino v. Valley Family Practice Medicine, 912 A.2d 851 (Pa. Super. 2006).

Under traditional common law principles, the standard for expert testimony was relatively liberal.  See, Rauch v. Mike-Mayer, 783 A.2d 815 (Pa. Super. 2001).  So long as the expert possessed “reasonable pretention to specialized knowledge on the subject under investigation”, the expert was permitted to provide testimony.  Miller v. Brass Rail Tavern, 664 A.2d 525 (Pa. 1995).  In the context of medical malpractice, courts recognized that “specialties sometimes overlap and a practitioner may be knowledgeable in more than one field.” B.K. v. Chambersburg Hospital, 834 A.2d 1178 (Pa. Super. 2003), citing Bindschusz v. Phillips, 771 A.2d 803, 809 (Pa. Super. 2001).  Still, a medical expert was required to possess at least some expertise in the medical field being challenged within the litigation.  See, e.g. Kovalev v. Sowell, 839 a.2d 359 (Pa. Super. 2003); Dierolf v. Slade, 581 A.2d 649 (Pa. Super. 1990).

In 2002, Pennsylvania’s General Assembly passed a statute as part of the Medical Care Availability and Reduction of Error (MCARE) Act that directly addressed expert qualifications.  Section 1303.512 of MCARE provides:

“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.

(c) Standard of care.—In addition to the requirements set forth in subsections (a) and (b), an expert testifying as to a physician’s standard of care also must meet the following qualifications:

(1) Be substantially familiar with the applicable standard of care for the specific care at issue as of the time of the alleged breach of the standard of care.

(2) Practice in the same subspecialty as the defendant physician or in a subspecialty which has a substantially similar standard of care for the specific care at issue, except as provided in subsection (d) or (e).

(3) In the event the defendant physician is certified by an approved board, be board certified by the same or a similar approved board, except as provided in subsection (e).

(d) Care outside specialty.—A court may waive the same subspecialty requirement for an expert testifying on the standard of care for the diagnosis or treatment of a condition if the court determines that:

(1) the expert is trained in the diagnosis or treatment of the condition, as applicable; and

(2) the defendant physician provided care for that condition and such care was not within the physician’s specialty or competence.

(e) Otherwise adequate training, experience and knowledge.—A court may waive the same specialty and board certification requirements for an expert testifying as to a standard of care if the court determines that the expert possesses sufficient training, experience and knowledge to provide the testimony as a result of active involvement in or full-time teaching of medicine in the applicable *103 subspecialty or a related field of medicine within the previous five-year time period.

40 P.S. § 1303.512 (emphasis added).”

 

It is important to recognize that the most restrictive provision of MCARE, § 1303-512(c), only applies to standard of care opinions; it does not govern opinion evidence on other issues.  Keller v. Feasterville Family Health, 557 F.Supp.2d 671 (E.D. Pa. 2008).  That being said, the MCARE statute created a paradigm for assessing standard of care testimony that transcended the traditional common law approach.  Pennsylvania’s highest Court has declared with consistency that MCARE “created a more stringent standard for admissibility of medical expert testimony in a medical malpractice action…” Vicari v. Spiegel, 989 A.2d 1277 (Pa. 2010).  See also, Gbur v. Golio, 963 A.2d 443, 452, 464 (Pa. 2009).  In fact, in the case of George v. Ellis, 911 A.2d 121 (Pa. Super. 2006), the Superior Court affirmed the dismissal of a medical malpractice case because an eminently qualified Canadian doctor did not possess the requisite American Board Certification required under the MCARE law.

The MCARE Act plainly prefers, and in some cases may require, that expert standard of care testimony in professional medical malpractice cases be offered by a physician with close if not identical qualifications to the doctor being sued.  A plain reading of the statute requires that a proffered expert:

• possesses an unrestricted physician’s license in the United States (§ 1303.512(b)(1));
• is engaged in active clinical practice or teaching (§ 1303.512(b)(2))[1];
• practices in the same subspecialty as the defendant physician or in a subspecialty which has a “substantially similar standard of care”. (§ 1303.512(c)(2));
• is board certified by the same board as the defendant physician (§ 1303.512(c)(3)).

The above being the clearly preferred model for expert testimony, MCARE did provide some degree of flexibility for litigants and the court.  Subsection (d) of § 1303.512  (hereafter “§§(d)”) permits courts to receive expert testimony pertaining to care that was undertaken by the Defendant that was “not within the physician’s specialty or competence.”  Subsection (e) of §1303.512 (hereafter “§§(e)”) permits a trial judge to allow testimony from an expert who practices in a “related field of medicine”.  Both §§(d) and §§(e) are implicated in this case.

As it relates to the §§(d) “practice outside specialty” exception to the general same expertise rule, we found only one Pennsylvania decision that specifically addressed the topic.  In Callari v. Rosenwasser, 63 Pa.D&C 4^th 366 (2003), a Common Pleas Court analyzed a situation where a neurosurgeon rendered post-operative infection care.  The Plaintiff sought to present an infectious disease expert and the defense objected based upon MCARE’s “same expertise” rule.  The Court rejected the Defendants’ challenge and stated:

“Clearly, based on Dr. Rosenwasser’s own testimony, the specific care at issue in this case does not fall within the exclusive expertise of a neurosurgeon.  Instead, the care complained of deals with the diagnosis and treatment of an infection, and an infectious disease expert would be substantially familiar with such standard of care…

 

This Court found Dr. Rosenwasser provided Mr. Callari with care that was not within his specialty and competence, pursuant to §1303.512(d)(2)…While acting as the attending physician responsible for Mr. Callari’s post-surgical care, Dr. Rosenwasser diagnosed and treated Mr. Callari’s infection.  He did so without the aid of an infectious disease expert, even though it was within his power as the attending physician to request such assistance.  Clearly, as evinced by his own testimony, Dr. Rosenwasser’s diagnosis and treatment of Mr. Callari’s infection was not within his specialty or competence.  Therefore, this Court found such care satisfied §1303.512(d)(2).”

 

The key decision pertaining to the §§(e) “relatedness” clause is Vicari v. Spiegel, 989 A.2d 1277 (Pa. 2010).  In Vicari, the trial court refused to permit an oncologist to testify as to standard of care that should have been observed by an otolaryngologist and a radiation oncologist.  The Superior Court reversed the lower court and the matter was appealed to Pennsylvania’s highest Court.  A 4-3 majority of Pennsylvania’s Supreme Court affirmed the decision of the Superior Court to permit testimony from the oncologist.

The court began its analysis by declaring that the trial court’s decision that an expert must have the same board certification as the defendant was a “misconception”.  Stating that the trial court “did not appear to recognize” §§(e) of §1303.512. the court proceeded to undertake an analysis of that subsection.  The court began its interpretation of §§(e) by stating: “It is of utmost importance to stress that such a competency determination can be made only after delineation of precisely what is the specific care at issue and after consideration of what testimony the expert will render.” Id at page 1283.  Concluding that the “sole issue” of the case was whether the defendant should have afforded the patient with a referral to a medical oncologist for purposes of procuring chemotherapy, the court concluded:

“Concerning this narrow question, we conclude that Dr. Blum was well qualified under §512 of the MCARE Act, to testify as to his opinion even though he was board certified by a different board and practiced in a different subspecialty than the defendant physicians.”

 

The court proceeded to discuss the meaning of “relatedness” of one field of medicine to another under §§(e) of §1303.512.  The court stated:

“The “relatedness” of one field of medicine to another, under §§512(e), can only be assessed with regard to the specific care at issue.  Two fields of medicine may be “related” with respect to certain specific issues of care, but unrelated with respect to other specific issues of care.  Determining whether one field of medicine is “related” to another with respect to a specific issue of care is likely to require a supporting evidentiary record and questioning of the proffered expert during voir dire.  This interpretation of “related field of medicine” is most compatible with the text of §§512(e) as a whole, which sets forth an exception to the formal same specialty and same board certification rules for experts otherwise qualified to testify.”

Id at page 1284

 

After describing “the realities of modern cancer therapy”, the Supreme Court of Pennsylvania concluded that oncology is a “related field of medicine” to otolaryngology and radiation oncology.  Thus, the court held that plaintiff’s experts should have been permitted to testify.

In Renna v. Schadt, 64 A.3d 658 (Pa. Super. 2013), Pennsylvania’s Superior Court applied the lessons of Vicari in a case involving failure to detect breast cancer.  In Renna, the plaintiff procured testimony from a doctor certified in pathology and oncology.  The defendant was a board certified surgeon.  Based upon an “extensive voir dire” of plaintiff’s expert, the trial court permitted him to testify as to standard of care that should have been employed by the Defendant.  The court reasoned that the negligence at issue “did not involve criticism of Dr. Schadt’s surgical technique…but in choosing a diagnostic method known for a high incidence of false negatives…” Id at page 667.  The court concluded:

“There was considerable evidentiary support for the trial court’s conclusion that a board certified pathologist and oncologist practiced in specialties related to a surgeon for purposes of rendering expert testimony as to the specific standard of care at issue, i.e., opting to perform a fine needle aspiration in lieu of other available biopsy methods.  Based on the record before us, we see no abuse of discretion in permitting Doctors Shane and Skalaroff to render standard of care expert testimony regarding the propriety of conducting a fine needle aspiration biopsy.”

 

Based upon the foregoing, and especially on Vicari, it is our responsibility to employ the following analytical paradigm:

• What are the issues?[2]
• What is the specialty of the Defendant?[3]
• Is the specialty of the Plaintiff’s expert identical to the Defendant? 
• Did the Defendant render services outside his sub-specialty?
• If the proffered expert does not practice in the identical board certification, is his/her specialty “related” to that of the defendant doctor?

With the legal principles outlines above in mind, we will outline the challenges submitted by the parties on a doctor-by-doctor basis.

 

• Robert Bojar

Dr. Bojar is one of WENTZEL’s experts.  He is gastroenterologist and an internist.  From reading Dr. Bojar’s report, it appears that his primary role is to discuss the mortality rate for people who have emergency surgery to repair a dissecting aorta.  He opines that such people have an “excellent chance of survival”.  In addition, Dr. Bojar discusses the symptomology of a dissecting aorta.  He is also critical of the care provided by Dr. Bonin.

It certainly appears from our review of the record that Dr. Bojar is familiar with and competent to address issues pertaining to dissected aortas.  As it relates to the implications and treatment of a dissecting aorta, we will permit Dr. Bojar to provided testimony consistent with his report.  This includes testimony that emergency surgery would afford a patient with an “excellent chance of survival” once a dissecting aorta is discovered.

On the other hand, Dr. Bojar is not an Emergency Room physician.  He is a specialist.  His knowledge of internal medicine and dissecting aortas clearly transcends the knowledge of a more generally-oriented Emergency Room doctor.  Even without the MCARE mandate that standard of care be addressed only by people with nearly identical qualifications, our visceral sense is that it would be unfair to hold a generalist like an Emergency Room physician to the standard and skill of a specialist who has far more training and experience dealing with specific maladies.

We will leave the door open for WENTZEL to provide additional information via voir dire regarding Dr. Bojar’s background and training.  However, absent something of great surprise, we do not expect that we would permit Dr. Bojar to render any opinion regarding standard of care or its breach.  Dr. Bojar’s testimony will be limited to the issue of dissecting aortas and how they can be effectively treated and/or repaired.

 

• Robert Boova

This Court knows relatively little about Dr. Boova except that he was mentioned almost in passing within one of WENTZEL’s Motions in Limine.  We have not been given a copy of Dr. Boova’s C.V., but from what we can discern, it appears as though Dr. Boova will provide testimony to rebut that of Dr. Bojar regarding the chances of surviving a dissecting aorta.  To the extent necessary, we adopt the analysis we have employed regarding Dr. Bojar that was outline above.  It will be employed equally with respect to Dr. Boova.

 

 

• Brian Le

Dr. Le is an expert hired by the defense.  He is an anatomical pathologist and is also board certified in neuropathology.  Dr. Le has authored an opinion that addresses numerous issues.  Included among those issues are the following:

• “Observations” about Dr. Bonin’s clinical assessment;
• A discussion about the process that occurs when an aorta becomes dissected;
• The impact of Greg Wentzel’s pre-existing health problems, including hypertension; and
• An analysis of whether emergency surgery upon Mr. Wentzel would have been successful.

As it relates to all issues other than Dr. Bonin’s standard of care, it appears as though Dr. Le is qualified to render analysis and opinion.  As to the standard of care issue, we note that Dr. Le is not board certified in emergency medicine.  As we noted with respect to Dr. Bojar, Dr. Le is a specialist.  It would not be fair for him to opine conclusions – either favorable or unfavorable – pertaining to how a generalist such as an Emergency Room physician should go about his/her duties.

As with Dr. Bojar, we will leave the door cracked to hear additional information during voir dire that could change our opinion.  However, absent something surprising, we do not expect that we will permit Dr. Le to render an opinion regarding Dr. Bonin’s standard of care or whether he adhered to it.

 

• Jonathan Berlin

Dr. Berlin is a radiologist hired by WENTZEL.  Dr. Berlin evaluated the x-rays taken of Gregory Wentzel while he was in the WellSpan Emergency Room.  Dr. Berlin stated that his reading of Greg Wentzel’s x-ray revealed ectasia – abnormal enlargement – of the thoracic aorta.  Dr. Berlin stated in his report:

“I will leave it to the Emergency Room physicians in this case to address whether there were any clinical features to suggest acute aortic dissection, or whether acute aortic dissection was or should have been in Dr. Bonin’s differential diagnosis.  But as regards this x-ray, it is at least consistent with if not suggestive of acute aortic dissection in a proper clinical setting.”

 

Dr. Berlin’s testimony implicates §§(d) outlined above.  Because Dr. Bonin undertook to read the x-ray of Greg Wentzel, did he deviate from the responsibilities of an Emergency Room physician in order to “undertake” the role of a radiologist?

Subsection (d) recognizes that when a doctor undertakes responsibilities that are ordinarily performed by other physicians of a given sub-specialty, then it would be permissible to hold that doctor to the standard of the sub-specialty he undertook.  If strictly applied, §§(d) would enable Dr. Berlin to render an opinion as to the standard of care expected in the interpretation of an x-ray.  Yet something about this just does not feel right.

This jurist is aware from a lifetime of sports injuries that the first thing an Emergency Room doctor will order is x-rays.  Presumably, x-rays are a “go-to” diagnostic tool when assessing patients within an Emergency Room.  Because of this, Emergency Room doctors read and rely upon x-rays in assessing patients with problems they have encountered for the very first time. Because of this, there is obviously a standard of care that applies to Emergency Room physicians who interpret x-rays. But is that standard identical to one employed by a radiologist?  This is a question we cannot answer based upon the record before us.

In cases like Vicari where our Appellate Courts have permitted standard of care testimony from physicians who hold a different board certification than the defendant, our Appellate Courts emphasized and appreciated the voir dire that was conducted by the parties and the Court as a preface to qualification of a doctor as an expert.  In this case, we will defer any decision regarding Dr. Berlin’s testimony regarding standard of care until after a voir dire on qualifications.  Among the questions to be addressed during voir dire will be the following:

• Whether Dr. Berlin ever worked in an Emergency Room setting;
• Whether the purpose of a radiologist’s evaluation of x-rays is the same as the purpose of an Emergency Room physician;
• Whether and to what extent Emergency room physicians refer x-rays to radiologists for additional opinions;
• Whether the amount of time a radiologist has to study an x-ray is typically the same as the time allotted to an Emergency Room physician who is effectively conducting triage;
• Whether there is a significant difference in training between a radiologist and an Emergency Room physician regarding interpretation of x-rays.

Of course, there may be other relevant areas of inquiry as well.  The above is not intended to limit the parties in the scope of their voir dire of Dr. Berlin.

Because we do not believe that it would be fair to assess this issue based entirely upon Dr. Berlin’s testimony, we will entertain a motion for a pre-trial hearing under Pa.R.Ev. 104.  If such a motion is filed, we would permit testimony from relevant witnesses who have knowledge about the difference between radiologists and Emergency Room physicians as it relates to reading of x-rays.  Because this Court “is not bound by evidence rules” in conducting a hearing under Pa.R.Ev. 104, we would permit both parties to submit written reports regarding this issue to supplement any testimony that either side wishes to present.

As is obvious from the above, we will not render a final decision today regarding the scope of Dr. Berlin’s testimony at trial.  At a minimum, we will wait until voir dire at trial to render such a decision.  Preferably, one of the parties will file a motion for a hearing under Pa.R.Ev. 104 and we will be able to receive a plethora of pertinent information relevant to the question of whether Dr. Berlin should be able to afford testimony critical of Dr. Bonin’s interpretation of Greg Wentzel’s x-ray.

 

• David Auerbach

In addition to the above challenges to expert qualifications, WENTZEL has also filed a motion seeking to prohibit or limit testimony from Dr. David Auerbach.  Dr. Auerbach is a radiologist who is apparently employed to review x-rays taken at the WellSpan Emergency Room.  He was deposed as a fact witness.  According to excerpts from his deposition that were presented to us, Dr. Auerbach read and interpreted Gregory Wentzel’s x-rays.  He concluded that there was “ectasia of the thoracic area”, but he also stated that he could not disagree with Dr. Bonin’s interpretation of the x-ray.

There is much that we do not know about Dr. Auerbach’s involvement in this case.  For example, when did he read Gregory Wentzel’s x-ray?  Was it before or after Mr. Wentzel died?  Did he author a written report that was forwarded to Dr. Bonin before Gregory Wentzel died?  Did he make any telephone calls to Dr. Bonin regarding his interpretation of the x-ray?

Depending upon answers to the above questions, Dr. Auerbach’s involvement in this case could very well constitute a critical component of the res gestae of this dispute.  On the other hand, if Dr. Auerbach reviewed the x-ray after Gregory Wentzel had passed away, his interpretation would have been clearly evaluative and not therapeutic.  In the former circumstance, Dr. Auerbach’s opinion would probably not be admissible, while we would be loath to exclude it in the latter scenario.

As it relates to Dr. Auerbach, we will defer a decision until we know more at the time of trial.  For today, we will deny the Motion in Limine seeking to exclude testimony from Dr. Auerbach.

 

1. Life Care Plan

By all accounts, Gregory Wentzel was a family man.  He is survived by a wife and a minor autistic son (hereafter D.W.).  As part of her claim, WENTZEL seeks to recover an enormous sum of money (nearly 3 million dollars) that she claims will be needed for the future care of D.W.  The parties vigorously dispute the extent to which WENTZEL can receive damages for the future care of D.W.  Before addressing the specific arguments of the parties, we will embark upon a broader discussion of what can be recovered under Pennsylvania law as a result of a negligently caused death.

Pennsylvania law has created two categories of recovery for a negligently caused death.  A “survival action” is authorized by 42 Pa.C.S.A. § 8302.  In a survival action, the decedent’s estate can recover monetary damages that would have been recoverable directly by the decedent had he lived.  See, Heckensweiler v. McLaughlin, 517 F.Supp. 2d 707 (E.D. Pa. 2007).  More pertinent to the dispute now before the Court is Pennsylvania’s wrongful death cause of action.  A wrongful death claim is governed by 42 Pa.C.S.A. § 8301, which states:

“(a) General Rule – An action may be brought, under procedures prescribed by general rules, to recover damages for the death of an individual caused by the wrongful act or neglect or unlawful violence or negligence of another if no recovery for the same damages claimed in the wrongful death action was obtained by the injured individual during his lifetime…

 

(b) Beneficiaries – …the right of action created by this section shall exist only for the benefit of the spouse, children or parents of the deceased…”

 

42 Pa.C.S.A. § 8301

 

“A wrongful death action does not compensate the decedent; it compensates the survivors for damages which they had sustained as a result of the decedent’s death.” Linebaugh v. Lehr, 505 A.2d 303, 304-305 (Pa Super. 1986).  The purpose of a wrongful death claim is to compensate family members for pecuniary losses they have and will sustain as a result of the death of their loved one.  See, e.g. Gillette v. Wurst, 937 A.2d 430 (Pa. 2007).  However, the value of life itself is not per se compensable.  Willinger v. Mercy Catholic Medical Center of Southeastern Pennsylvania, 393 A. 2d 1188 (Pa. 1978).  Moreover, grief suffered by family members is not a proper component of wrongful death damages. Ferne v. Chadderton, 69 A.2d 104 (Pa. 1949).

The law clearly prohibits duplicative recovery in both a wrongful death and a survival claim.  Kiser v. Schulte, 648 A.2d 1 (Pa. 1994).  The ultimate goal of a wrongful death claim is to measure the loss suffered by family members and not the inherent loss suffered by the victim of a wrongfully caused death. See, Hatwood v. Hospital of the University of Pennsylvania, 55 A.3d 1229 (Pa. Super. 2012).  While easily articulated, the above precepts are for more difficult to apply in real life.[4]

The measure of damages accruing to a family member can be particularly murky.  Several cases have described compensable losses by family members as “similar to the definition of consortium as that term is applied in other negligence cases.”  See, Rettger v. UPMC Shadyside, supra.  On the other hand, another case held that it was error for a judge to refer to wrongful death damages as “parental consortium.” See, Machado v. Kunkel 804 A.2d 1238 (Pa. Super. 2002).

It is interesting to chronicle the evolution of Pennsylvania law governing recovery by surviving children for the loss of a parent.  This issue was addressed at length in 1930 in the oft-cited case of Gaydos v Domabyl, 301 Pa. 523, 152 A.549 (1930).  In Gaydos, a widow was killed by the negligence of the defendant.  One of her children – who became an orphan – was incompetent and was confined to an asylum.  Under the circumstances, Pennsylvania’s Supreme Court declared that an adult child can recover “direct pecuniary loss” suffered as a result of the loss of a parent.  In defining pecuniary loss, the Court stated:

“[The] mother’s services consisted of so many indefinable acts of tender solicitude, frugality, industry, usefulness, and attention to her children which only a mother knows how and when to give.  These services, in addition to managing the household, buying clothing and food, washing, cooking, and general care and supervision of the house, are certainly more valuable than those of a housekeeper or servant and therefore worth more.  Her age, health, expectancy, and diminishing power to serve, all these items are proper for the consideration of the jury.”

Id at page 536.

 

For decades following Gaydos, actual monetary pecuniary loss was the benchmark by which wrongful death damages to children were awarded.  Then gradually things began to change.  In 1959, Pennsylvania’s highest Court listed all of the family-related services that a mother typically provides.  The Court recognized that while many of these services could be translated into pecuniary values based upon labor rates paid to housekeepers, “the amount paid to such a housekeeper would not compensate for [a mother’s] displacement.  There are services performed by a wife-mother which no housekeeper can supply.” Id at page 492.  The Court listed companionship, comfort, society, guidance, solace and protection as motherly services that “go into the vase of family happiness” and are “things for which a wrong-doer must pay when he shatters the vase.” Id at page 492.  Because of this, the Court declared that there is “no mathematical formula whereby compassionately bestowed benefits can be converted into a precise number of banknotes…”. Id at page 492.   By the 1980s, it was well established that a child could recover in a wrongful death action for the loss of companionship, comfort, society and guidance by a parent.  See¸ Buchecker v. Reading Company, 412 A.2d 147 (Pa. Super. 1979); Steiner by Steiner v. Bell Telephone Company, 517 A.2d 1348, 1356 (Pa. Super. 1986).

In a medical malpractice case decided in 2002, the Superior Court declared that a child could recover for the loss of services provided by his/her parent, including amorphous parental blessings such as love, guidance, tutelage, moral upbringing, companionship, comfort and society.  These items are in addition to more concretely measured parental services such as providing shelter, food, clothing, medical care, entertainment and recreation.  In a modern wrongful death claim, a child can recover all of the above.  See, Machado v. Kunkel, supra.

                In this case, D.W. is autistic; he has and will continue to require special care.  WENTZEL has attempted to monetzie the special needs of the autistic boy by proffering a life care plan that assigned dollar values to the services that will be needed by D.W. now that his father is deceased.    DEFENDANTS challenge the admissibility of this life care plan on several grounds.  First, DEFENDANTS claim that WENTZEL is trying to focus this case more upon ideal treatment  for a special needs autistic child than on the loss of Gregory Wentzel’s services to his son.  Second, the defense points out that the life care plan seeks annual damages greater than the amount Gregory Wentzel earned during any year of his lifetime.

Given the purpose of wrongful death damages as outlined above, it is completely appropriate for the Plaintiff to focus upon how WENTZEL’s autistic son was impacted by his father’s death.  In every true sense of the word, the autistic son was a victim of his father’s death.  Moreover, it is indeed plausible that the boy suffered more than most given his autism and the apparently strong bond he had with his father.  It neither offends our sense of justice or our reading of Pennsylvania law to allow the Plaintiff to fully explore the extent of to which the decedent’s son suffered.

On the other hand, the Life Care Plan proffered by WENTZEL seems to focus on how D.W.’s needs can be ideally treated with the availability of unlimited resources.  Such ideal treatment would not have been possible even had Greg Wentzel lived.  The sheer scope of the Life Care Plan troubles us.

The DEFENDANTS point out that WENTZEL’s life care plan is patently unreasonable because it seeks an amount of money that exceeds what Gregory Wentzel earned from his job.  DEFENDANTS argue that it is not conceivable that Gregory Wentzel would have contributed more to his autistic son than he was able to earn.  While superficially appealing, the DEFENDANTS’ argument ignores the possibility that Gregory Wentzel could have earned even more had he not spent considerable time caring for his autistic son.  In addition, the DEFENDANTS’ argument misperceives the nature of WENTZEL’s claim.  WENTZEL is not asserting that Mr. Wentzel would have spent all of his income so that someone else could provide care for his son; WENTZEL is claiming that no one else was required to provide such care because of what Gregory Wentzel did out of love for his son.

We have reviewed the life care plan relied upon by WENTZEL.  Viscerally, it does seem excessive.  But, whether or not a claim is an overreach is a decision to be rendered by a jury.  We cannot and will not usurp the responsibility of the jury via a Motion in Limine.

Based upon our research and the information presented, we conclude that WENTZEL should be permitted to present the totality of their claim for wrongful death damages.  In may well be that the Wentzels’ autistic son suffered the most as a result of his father’s death at a relatively young age.  It may well be that the son’s autistic needs that were previously cared for by Mr. Wentzel have left a void in the life of the boy that could only be even partially filled with the expenditure of considerable funds.  On the other hand, the efforts of WENTZEL to monetize the son’s needs may very well be an overreach.  None of the above is for us to say.  Ultimately, a jury will have to evaluate all of the evidence and determine what is fair. Through Motions in Limine, we will not preclude either side from submitting their evidence and arguments pertaining to the losses – tangible and intangible – suffered by the Wentzel family.

1. Family Damages

The defense seeks to exclude testimony and opinions regarding the impact of Gregory Wentzel’s death on his family as “speculative and cumulative”.  In their brief, the DEFENDANTS point out that none of Mr. Wentzel’s family members witnessed his actual death.  They claim that the lay witnesses who are expected to testify in support of WENTZEL’s claims are “not qualified and/or competent to testify to explain the effect that Greg Wentzel’s death has had on D.W.’s behavior.”

In response, WENTZEL refers to deposition testimony from numerous friends and acquaintances of the Wentzel family.  From the excerpts we read in WENTZEL’s briefs, it is clear that these friends and neighbors knew the Wentzel family well.  It is also clear that these people observed a great deal about D.W.’s behavior and how it changed after his father’s death.  These types of “before and after” observations by interested friends and neighbors can provide far more poignant proof about a family’s loss than multi-syllabled diagnoses by people with multiple diplomas.  To exclude this lay testimony would be to obscure a true picture of what happened to the Wentzel family after Gregory Wentzel’s death.

The DEFENDANTS’ Motion in Limine seeking to exclude testimony concerning the impact of Gregory Wentzel’s death on his family will be denied.  We will permit testimony from family, friends and neighbors with direct knowledge of the “before and after” lives of the Wentzel family.

 

1. Arguments Pertaining to COVID-19

It is beyond debate that COVID-19 has profoundly changed the landscape of America in a multitude of ways.[5]  Yet COVID-19 was not a blip on anyone’s radar screen when the events relevant to this litigation occurred.  For this reason, and because neither side can or should prey upon the fears or sympathies of the jury, we will prevent both sides from attempting to frame any argument that relies upon COVID-19 or the response of the medical community to it.

 

1. Radiology Intake Form

Kylie Spickler is a Radiology Technician employed at the Good Samaritan Hospital.  Ms. Spickler was responsible for shepherding Gregory Wentzel through the x-ray process when he visited the Emergency Room.  As part of her duties, Ms. Spickler received and recorded information from Mr. Wentzel.  In her own words, “I will go ahead and ask some history pertaining to what exam we are doing that day.”  Apparently, the history taken by Ms, Spickler contained information about pain suffered by Mr. Wentzel that is of importance to his diagnosis – or misdiagnosis.

The defense seeks to preclude testimony from Ms. Spickler about the information she received from Gregory Wentzel.  According to the DEFENDANTS, Ms. Spickler was merely a “technician” and had no medical licenses.  According to the defense, Ms. Spickler’s “history” information was gratuitous and should not be considered a part of Mr. Wentzel’s medical file.  Because of this, the defense seeks to exclude evidence of what Gregory Wentzel said to Kylie Spickler.

We categorically reject the DEFENDANT’s arguments regarding Ms. Spickler’s medical history information.  If in fact information provided to a Radiology Technician is “meaningless”, then why was the technician trained to obtain it?  If in fact information received by a Radiology Technician is not considered part of a medical file, then why is it recorded?  The answers to these rhetorical questions are obvious.  The defense is trying to depreciate the importance of Ms. Spickler’s notes because the defense does not like what is contained in them.  Such is not a legitimate reason to exclude documentation that is in fact a part of Mr. Wentzel’s medical file.  We will deny the DEFENDANTS’ request to exclude information received and recorded by Kyle Spickler.

 

1. Statements of Coroner

Following Gregory Wentzel’s death, an autopsy was conducted under the auspices of Lebanon County Coroner Dr. Jeffrey Yocum.  Apparently, Dr. Yocum spoke with Dr. Bonin after the autopsy.  He is reported to have said something to the effect of: “His aorta exploded.  There was nothing you could do.”  WENTZEL seeks to exclude evidence of this conversation as hearsay.

The statement of Dr. Yocum to Dr, Bonin is clearly hearsay.  It is an out of court statement uttered for the truth of the matter asserted.  Although there is an exception to hearsay dealing with “statements made for medical diagnosis or treatment” (Pa.R.Ev. 803(4)), the statement of Dr. Yocum to Dr. Bonin does not fall within this category.  Rather, Dr. Yocum’s statement was a post-mortem conclusion about whether Dr. Bonin could have done something different to save Greg Wentzel’s life.  As hearsay, Dr. Yocum’s statement to Dr. Bonin will be excluded.[6]

 

1. Autopsy Photographs

The DEFENDANT seeks to prohibit autopsy photos based upon a probative value versus prejudicial effect pursuant to Pa.R.Ev. 403.  As noted above, we will not render any decisions under Rule 403 in advance of trial.  Therefore, the DEFENDANTS’ Motion In LImine pertaining to autopsy photos will be denied.

 

1. Interview Excerpt

Apparently, one of WENTZEL’s damages experts, Dr. Annie Steinberg, conducted an interview with D.W.  WENTZEL seeks to introduce in evidence a two-minute excerpt from this interview.  According to the defense, this two-minute excerpt focuses upon problems in the relationship between Jennifer Wentzel and D.W.  This two-minute excerpt is used as support for Dr. Steinberg’s discussion about the difficulties experienced by a single mom in caring for a special needs child.

Conceptually, we would have no problem allowing Dr. Steinberg to rely upon contents of a recorded interview in which she participated.  The problem is that the two-minute excerpt proffered by WENTZEL is part of a more lengthy interview recording that was not disclosed to the defense.  We do have a problem with the lack of context surrounding the two-minute excerpt.

Context is almost always important.  In fact, passages that precede or follow a given excerpt can in some cases define what is said in the excerpt itself.  According to the DEFENDANTS’ brief, the entirety of the recorded interview was not turned over in discovery.  In fact, the DEFENDANTS complain that the do not know details such as When?, Where?, Who?, and How long?

If WENTZEL still wishes to show the two-minute excerpt from the interview of D.W., and if the entirety of the transcript/tape is still available, then WENTZEL will have to provide the entirety of the interview evidence to the defense immediately.  Provided that is accomplished, we will then analyze the DEFENDANTS’ Rule 403 “probative value versus prejudicial effect” objection at the time of trial.  If the entirety of the interview cannot be disclosed, then WENTZEL should plan to proceed at trial without the two-minute excerpt as evidence.

 

1. Memorial Video From Co-Workers

The defense refers to a “memorial video” that was apparently created by Greg Wentzel’s co-workers.  According to the defense, this video exemplifies how Gregory Wentzel lived his life.  WENTZEL argues that the video is relevant to provide the jury with information about how Gregory Wentzel’s loss will be felt by his family.

We have not yet seen the memorial video.  It would not be appropriate for us to render any decision regarding its admissibility sight unseen.  As a general proposition, we are not offended by information that exemplifies how a decedent was valued by those who knew him best.  If it can be authenticated, and if it can pass hearsay muster, a tape by co-workers could be helpful for a jury to determine whether Gregory Wentzel would have continued to work and earn income through the remainder of his work life expectancy.  Such video could also be useful to help define characteristics such as self-sacrifice and altruism, which are important in measuring what Gregory Wentzel would have done for D.W. had he lived.

We will direct that WENTZEL provide a copy of the memorial video to this Court using a thumb drive.  We will look at the video in advance of trial.  Any ruling regarding admissibility of the video will be deferred until the trial occurs.

1. Grief as a Measure of Damages

In conjunction with their other arguments regarding wrongful death damages, DEFENDANTS claim that the Court should not permit testimony regarding “grief” suffered by Gregory Wentzel’s family.  The defense relies on cases such as Taylor v. Extended Health Facilities, 147 A.3d 490 (Pa. 2016) and Ferne v. Chadderton, 69 A.2d 104 (Pa. 1949) for the proposition that grief suffered by family members is not a compensable component of wrongful death damages.

From a broad legal perspective, we agree with the DEFENDANT.  We would never allow a verdict slip to contain a request for general damages based up grief, nor would we instruct a jury that they should evaluate and compensate the WENTZEL’s family for the subjective sorrow that was experienced  following Gregory Wentzel’s death.

But how does one separate loss from grief?  How is it possible to prevent tears and cracked voices when family members are describing memories of lost loved ones?  For us to enter a broad proclamation today prohibiting expressions of “grief” at trial would be presumptuous.  To do so would be unrealistic and would absolutely inhibit the organic flow of information that a jury needs to hear in order to evaluate the impact of Gregory Wentzel’s death on his family.

For today, we will proclaim definitively that we will not permit grief as a component of recoverable damages.  However, we will not inhibit the organic flow of information at trial by issuing an artificial limitation on how WENTZEL and her witnesses can describe the loss of Gregory Wentzel.  As noted above, WENTZEL is entitled to recover for the loss of love, companionship, society, education, moral support, guidance and related “services” they would have received from Gregory Wentzel had he lived.  We will not inhibit WENTZEL in proving these things simply because these losses are overlaid with “grief” over the loss of Mr. Wentzel.

 

1. Gregory Wentzel’s Pain and Suffering

Pre-mortem pain and suffering is a component of damages under Pennsylvania’s Survival Act.  In this case, WENTZEL will be asking the jury to award damages for pain and suffering.  The defense asks us to exclude such a claim.

DEFENDANTS argue that any award of damages for pain and suffering would be based upon speculation due to the lack of direct evidence that Mr. Wentzel suffered prior to his death.  The DEFENDANTS point to the deposition of Jennifer Wentzel.  In that deposition, she states that her husband was “very, very tired” after his hospital visit, but he did not utter complaints about pain or other issues.  DEFENDANTS believe that in the absence of direct proof, an award of pain and suffering would not appropriate.

WENTZEL responds that Gregory Wentzel complained of pain to the triage nurse at the Emergency Room.  He told another nurse that he experienced “burning sensation in the upper back”.  When he was discharged from the hospital, he was given morphine for “pleuritic pain”.  In addition, WENTZEL alleges that all of their experts will testify that aortic dissections are always accompanied by pain.  Thus, WENTZEL will argue that because Mr. Wentzel’s death was caused by an aortic dissection, he by definition must have experienced pain.

Generally speaking, any disputed fact can be proven or refuted by the use of circumstantial evidence.  See¸ e.g. Keilbach v. Metropolitan Life Insurance Company, 43 A.2d 652 (Pa. Super. 1945).  In a wide variety of contexts, Pennsylvania’s Appellate Courts have determined that pain can be established circumstantially.  See, e.g. D.N. v. Commonwealth Department of Public Welfare, 562 A.2d 433 (Pa. Cmwlth. 1989) (Finding that a child suffered severe pain need not be shown by direct evidence from the child; it can be deduced circumstantially from the nature of the child’s injuries); Commonwealth v. Johnson, 42 A.3d 1017 (Pa. 2012) (Pathologist is able to opine that a two-year old victim suffere pain prior to death); Weiner v. White Motor Company, 297 A.2d 924 (Pa. Super. 1972) (Award of pain and suffering affirmed for truck driver who died from third-degree burns over 80% of his body uphold based upon inference that he “endured pain for a brief period of time”.)

In this case, there is scant direct evidence that Gregory Wentzel suffered pain between the time that he was allegedly misdiagnosed and the time of his death.  In fact, the most pertinent direct evidence, from his wife Jennifer, was that Mr. Wentzel did not suffer significantly during this period of time.  Yet the lack of direct evidence does not enable us to issue an Order In Limine precluding WENTZEL from seeking damages for pain and suffering.  It is indeed possible that WENTZEL will be able to establish through circumstantial evidence that Greg Wentzel endured pain prior to passing away.  At this point, we will not render a decision one way or another about the recoverability of damages for pain and suffering.  Rather, we will wait to listen to the trial testimony as it evolves.  Based upon what is presented at trial, we will then render a decision as to whether to submit WENTZEL’s request for pain and suffering damages to the jury for its consideration.

 

 

1. CONCLUSION

We have taken the time to author this Opinion because we hope the parties will find it helpful in their trial preparation process.  We will be deferring many decisions until the time of trial.  That being said, we wish to admonish both counsel that frivolous serial objections can be self-defeating.  As is obvious from the above, we do not intend to “gut” either side’s cases via pre-trial evidentiary rulings.  Neither will we do so at trial.  Neither side should focus upon winning their case through serially proffered objections.  Both sides should focus upon convincing the jury that their respective position is the one that should be adopted.

With the above admonition having been rendered, we will enter an Order consistent with this Opinion regarding the various Motions In Limine that have been presented to this Court.

 

 

[1] The expert may be retired provided he engaged in active practice within the past five (5) years.

[2] A plaintiff’s theory of the case will primarily define the issue to be addressed.  However, there will be times when a medical issue is driven by the defense as well.

[3] If the defendant doctor was board certified, in what specialty or sub-specialty was he boarded?

[4] For example, there is inevitable duplication between amounts that can be claimed in a survival action for future loss of earnings and amounts that can be claimed for loss of financial support to relatives within a wrongful death claim.  By definition, a decedent’s ability to earn money can trigger a request for damages under both the survival and wrongful death statutes.  Because of this dynamic, the court must exercise extreme care to prevent duplicative recovery.  See, Kiser v. Schulte, 648 A.2d 1 (Pa. 1994).

[5] Among these is the manner in which jury trials must be conducted.  This trial will  be conducted in a manner very different from how trials were conducted in pre-COVID days.  Masks.  Social distancing.  Plexiglass and plastic shields in front of witnesses.  All of these things would have been unheard of six months ago.  Now they are ubiquitous.

[6] At this point, we render no decision regarding the scope of Dr. Yocum’s testimony if he appears at trial as a fact witness.  Clearly, Dr. Yocum has relevant information pertaining to the cause of Gregory Wentzel’s death and we do not intend to exclude that relevant information.  Our decision today merely prevents Dr. Bonin and other witnesses from relying upon the statement of Dr. Yocum: “His aorta exploded.  There was nothing you could do.”