J-A15043-16
`
`2016 PA Super 251
`
`ROSALIND W. SUTCH, AS EXECUTRIX OF
`THE ESTATE OF ROSALIND WILSON,
`DECEASED
`
`
`
`
`
`
`v.
`
`
`ROXBOROUGH MEMORIAL HOSPITAL,
`SOLIS HEALTHCARE, LP, ANDORRA
`RADIOLOGY ASSOC., TENET
`HEALTHSYSTEM ROXBOROUGH, LLC,
`TENET, INC., TENET GROUP, LLC,
`ROXBOROUGH EMERGENCY PHYSICIAN
`ASSOCIATES, LLC, BARBARA ROBINS,
`M.D., JEFFREY GELLER, M.D., AND
`MELANIO D. AGUIRRE
`
`APPEAL OF: NANCY K. RAYNOR,
`ESQUIRE
`
`
`
`
`
`
`
` IN THE SUPERIOR COURT OF
`PENNSYLVANIA
`
`
`
`
`
`
`
`
`
`
`
`No. 1836 EDA 2015
`
`Appeal from the Judgment Entered May 2, 2012
`In the Court of Common Pleas of Philadelphia County
`Civil Division at No(s): 0907-0901
`
`
`ROSALIND W. SUTCH, AS EXECUTRIX OF
`THE ESTATE OF ROSALIND WILSON,
`DECEASED
`
`
`
`
`
`
`v.
`
`
`ROXBOROUGH MEMORIAL HOSPITAL,
`SOLIS HEALTHCARE, LP, ANDORRA
`RADIOLOGY ASSOC., TENET
`HEALTHSYSTEM ROXBOROUGH, LLC,
`TENET, INC., TENET GROUP, LLC,
`ROXBOROUGH EMERGENCY PHYSICIAN
`ASSOCIATES, LLC, BARBARA ROBINS,
`
` IN THE SUPERIOR COURT OF
`PENNSYLVANIA
`
`
`
`
`
`
`
`
`

`

`J-A15043-16
`
`M.D., JEFFREY GELLER, M.D., AND
`MELANIO D. AGUIRRE, M.D.
`
`APPEAL OF: JEFFREY GELLER, M.D. AND
`ROXBOROUGH EMERGENCY PHYSICIAN
`ASSOCIATES, LLC
`
`
`
`
`
`
`
`
`
`
`No. 1852 EDA 2015
`
`Appeal from the Judgment Entered May 15, 2015
`In the Court of Common Pleas of Philadelphia County
`Civil Division at No(s): 0907-0901
`
`
`
`BEFORE: FORD ELLIOTT, P.J.E., DUBOW, J., and JENKINS, J.
`
`OPINION BY JENKINS, J.:
`
`FILED NOVEMBER 15, 2016
`
`
`
`In this contentious medical malpractice action, Jeffrey Geller, M.D.
`
`(“Dr. Geller”) and Roxborough Emergency Physician Associates, LLC
`
`(“REPA”) appeal at 1852 EDA 2015 from a judgment of $778,643.85 entered
`
`in favor of Rosalind Sutch, personal representative of the Estate of Rosalind
`
`Wilson, deceased (“the Estate”).1 Dr. Geller and REPA argue, among other
`
`things, that the trial court abused its discretion by disqualifying their
`
`attorney, Nancy Raynor, Esquire, from representing them during the second
`
`trial in this case.
`
`Raynor herself appeals at 1836 EDA 2015 from an order directing her
`
`to pay $44,693.25 in counsel fees to the Estate.
`
`____________________________________________
`
`1 There were two trials in this case. Following the first trial, the trial court
`granted the Estate’s motion for new trial, and this Court affirmed. The
`second trial resulted in a verdict for the Estate, which the trial court
`subsequently reduced to judgment. The appeal at 1852 EDA 2015 followed.
`
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`J-A15043-16
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`On August 17, 2015, we consolidated these appeals sua sponte. For
`
`the reasons that follow, we affirm.
`
`Factual and Procedural History
`
`Decedent’s illness and lawsuit. On May 3, 2007, Rosalind Wilson
`
`(“Decedent”), then 68 years old, visited the emergency room of Roxborough
`
`Memorial Hospital (“Hospital”) due to a headache, chest pains and shortness
`
`of breath. Jeffrey Geller, M.D. (“Dr. Geller”) saw Decedent and ordered a
`
`chest x-ray. A radiologist, Barbara Robins, M.D., reviewed the x-ray and
`
`noted a suspicious 2.3 centimeter nodule on both a hospital STAT sheet and
`
`in her preliminary and final reports. Dr. Robins also recommended a CT
`
`scan.
`
`During Decedent’s overnight stay, Hospital physicians ruled out cardiac
`
`problems and pulmonary embolism. But at discharge, neither Dr. Geller nor
`
`the attending physicians, including Melanio Aguirre, M.D., advised Decedent
`
`of her lung nodule or her need for a CT scan.
`
`Twenty months later, in January 2009, Decedent learned that she had
`
`Stage IV lung cancer. The malignant lung nodule had grown to 8
`
`centimeters and metastasized to her brain. In early July 2009, Decedent
`
`filed a writ of summons against Hospital, Dr. Geller, REPA and other
`
`defendants. On July 21, 2009, Decedent passed away. After her death, her
`
`personal representative (“the Estate”) filed a complaint alleging that all
`
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`

`J-A15043-16
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`defendants breached their duty to tell Decedent about her lung nodule
`
`during her hospitalization in May 2007.
`
`Raynor’s and Packett’s letters to HUP. On July 21, 2009, attorney
`
`Raynor of the law firm of Raynor & Associates (“the Raynor firm”) entered
`
`her appearance for Dr. Geller and REPA in the medical malpractice action.
`
`Trial was originally scheduled for December 6, 2011, but another defendant,
`
`Dr. Aguirre, had a medical emergency which necessitated a continuance until
`
`May 21, 2012.
`
`On January 13, 2012, four months before the new trial date, Raynor
`
`sent a letter to general counsel for HUP, a non-party in the medical
`
`malpractice action. Raynor’s letter attacked the anticipated testimony of the
`
`Estate’s expert witness on emergency medicine, Stefanie Porges, M.D.,
`
`whom HUP employed as an emergency room physician. Raynor labeled Dr.
`
`Porges’ opinion “untenable” and wrote: “I thought you might want to know
`
`that, if this is [Dr. Porges’] position and plaintiff[s’] attorneys become aware
`
`of it, it could expose [HUP] to significant liability … I find it very difficult to
`
`believe that [Dr. Porges’ opinion] could be the official position of [HUP]
`
`under these circumstances …”
`
`The head of HUP’s Emergency Department contacted Dr. Porges about
`
`Raynor’s letter, and Dr. Porges in turn notified the Estate’s attorney. The
`
`Estate
`
`filed a motion seeking monetary sanctions and Raynor’s
`
`disqualification from representing Dr. Geller and REPA. Undaunted, Raynor
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`

`J-A15043-16
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`had an associate in her law firm, Judy May Packett, send letters to the
`
`Estate’s attorney in March and April of 2012 inquiring whether Dr. Porges
`
`would remain as the Estate’s expert.
`
`On April 19, 2012, Raynor and Packett attended a hearing before the
`
`Honorable Jacqueline Allen concerning the Estate’s motion for sanctions.
`
`Raynor stated that she “simply just said to someone outside the course of
`
`what [Dr. Porges] did in this case that hey, this is an opinion that’s out
`
`there.” N.T., 4/19/12, at 47. Raynor contended that her letter to HUP “is
`
`the type of thing that happens all the time. It could have been information
`
`relayed at lunch or at a cocktail party.” Id. at 18.
`
`On April 30, 2012, Judge Allen granted the Estate’s motion in part and
`
`ordered Raynor to refrain from contacting the Estate’s expert witnesses
`
`and/or their employers about any matter relating to the Estate’s case.
`
`Judge Allen determined that another hearing was necessary to determine
`
`the proper sanction but stayed the hearing pending the disposition of the
`
`upcoming trial.
`
`First trial. Prior to trial, the Honorable Paul Panepinto, the assigned
`
`trial judge, granted the Estate’s motion in limine to preclude all references to
`
`Decedent’s long history of smoking.
`
`During trial, Dr. Porges testified for the Estate as an expert witness on
`
`emergency room medicine. Raynor called John Kelly, D.O., as a defense
`
`expert on the same subject. During direct examination, Raynor asked Dr.
`
`- 5 -
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`J-A15043-16
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`Kelly whether Decedent had any cardiac risk factors. Dr. Kelly responded
`
`that Decedent was a smoker and was hypertensive. At the conclusion of Dr.
`
`Kelly’s testimony, the Estate’s attorney requested a sidebar conference.
`
`Judge Panepinto dismissed the jury and asked Dr. Kelly whether Raynor
`
`made him aware of the order banning all mention of Decedent’s smoking.
`
`Dr. Kelly answered that he did not remember discussing the order with
`
`Raynor.
`
`The next day, the Estate moved for a mistrial. Judge Panepinto denied
`
`the motion but gave a curative instruction to the jury. Several days later,
`
`on June 8, 2012, the jury returned a verdict for the Estate in the amount of
`
`$190,000 against Roxborough Memorial Hospital and Dr. Aguirre, but not
`
`against Raynor’s clients, Dr. Geller and REPA. The Estate filed post-trial
`
`motions requesting a new trial on the ground that the court erroneously
`
`denied its motion for mistrial.
`
`Further sanctions proceedings before Judge Allen. While post-
`
`trial motions were pending before Judge Panepinto, the Estate filed a
`
`supplemental memorandum with Judge Allen in support of its motion for
`
`sanctions against Raynor. The supplemental memorandum contended that
`
`the Estate incurred $45,694.25 in fees due to the hearings and motions
`
`necessitated by Raynor’s letter to HUP. The Estate also claimed in the
`
`supplemental memorandum that Raynor committed misconduct during the
`
`“smoking” incident in the first trial.
`
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`J-A15043-16
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`Judge Allen held a sanctions hearing, and on August 28, 2012, she
`
`entered an order (1) directing Raynor to pay $44,693.25 in counsel fees to
`
`the Estate and (2) disqualifying Raynor -- but not other attorneys in the
`
`Raynor firm -- from further representation of Dr. Geller and REPA.
`
`Raynor filed an interlocutory appeal from Judge Allen’s sanctions
`
`order, which this Court quashed.
`
`New trial granted and interlocutory appeal. On October 22,
`
`2012, Judge Panepinto granted the Estate’s motion for a new trial. All
`
`defendants appealed at 3246, 3249, 3255 & 3257 EDA 2012 (including Dr.
`
`Geller and REPA at 3246 EDA 2012).2 On November 4, 2013, this Court
`
`affirmed, stating that “the trial court properly reasoned [that the Estate]
`
`would suffer unfair prejudice if the jury discovered that [Decedent] was a
`
`smoker for approximately 50 years, in that this information might lead the
`
`jury to hold [D]ecedent accountable, to some extent, for contributing to the
`
`cause of her death, i.e., lung cancer.” Sutch v. Geller, et al., 3246 EDA
`
`2012 et al., at 15-16 (Pa.Super., 11/4/13). None of the parties filed a
`
`petition for allowance of appeal with our Supreme Court.3
`
`____________________________________________
`
`2 Dr. Geller and REPA state incorrectly that the “Plaintiff” appealed. Brief For
`Dr. Geller and REPA, at 50 (italics and underlining in brief).
`
` 3
`
` In separate proceedings, Judge Panepinto held both Raynor and the Raynor
`firm in civil contempt and imposed monetary sanctions in the amount of
`$946,197.16 on the ground that Raynor’s conduct in the “smoking” incident
`forced the court to order a new trial and caused needless expense to the
`(Footnote Continued Next Page)
`
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`

`

`J-A15043-16
`
`Proceedings before second trial. Although Raynor herself was
`
`disqualified as counsel, two attorneys from the Raynor firm, Packett and
`
`Carolyn Sollecito, continued to represent Dr. Geller and REPA. Sollecito
`
`drafted all memoranda relating to the second trial, and she continues to
`
`represent Dr. Geller and REPA in this appeal. Packett served as trial counsel
`
`for Dr. Geller and REPA during the second trial.
`
`The Honorable Frederica Massiah-Jackson presided over the second
`
`trial. The parties filed multiple pretrial motions in limine, including the
`
`Estate’s Motion In Limine To Enforce Pennsylvania Superior Court Order As
`
`The Law Of The Case And To Preclude Any Reference to Decedent’s
`
`Smoking. On October 17, 2014, Judge Massiah-Jackson granted this motion
`
`in part and denied it in part, ordering that the parties could not use
`
`Decedent’s smoking history with regard to causation but could use it with
`
`regard to damages. The judge also held that the Superior Court opinion at
`
`3246 EDA 2012 was “the law of the case.”
`
`Second trial. The second trial began on October 21, 2014. Thus,
`
`Sollecito and Packett had over two years following Raynor’s disqualification
`
`to prepare for trial and/or to obtain new counsel for Dr. Geller and REPA.
`(Footnote Continued) _______________________
`
`Estate. Raynor and the Raynor firm appealed to this Court at 3494 EDA
`2014. In a published opinion issued on June 15, 2016, this Court reversed
`the contempt order and vacated the judgment entered on the monetary
`sanctions. Sutch v. Roxborough Hospital, 142 A.3d 38 (Pa.Super.2016).
`On July 15, 2016, the Estate filed a petition for allowance of appeal to our
`Supreme Court at 313 EAL 2016. This petition remains pending.
`
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`
`

`

`J-A15043-16
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`Dr. Geller’s defense was that he never received Dr. Robins’ radiology
`
`report about the nodule in Decedent’s lungs. In rebuttal, the Estate
`
`presented the testimony of Dr. Porges, the same expert on emergency room
`
`procedure that the Estate had presented during the first trial. Dr. Porges
`
`observed that Dr. Geller ordered the chest x-ray which led to Dr. Robins’
`
`report identifying the lung nodule and recommending a CT scan. Dr. Porges
`
`opined that Dr. Geller breached his duty as the ordering doctor to obtain the
`
`test results. Dr. Porges testified that if Dr. Geller did not intend to obtain
`
`the test results, he had a duty to write in Decedent’s chart that the test
`
`results were not obtained, and that he expected someone else to obtain
`
`them. Relying on Dr. Robins’ testimony, Dr. Porges stated that Dr. Geller
`
`could have obtained the test results either by accessing the Hospital’s
`
`dictation system, calling radiology or walking 15 feet to the Radiology
`
`Department and making a verbal request.
`
`Dr. Robins and Dr. Geller testified that under Hospital’s standard
`
`practices, the STAT sheet that Dr. Robins prepared, as well as copies of her
`
`preliminary and final reports, were supposed to go to Dr. Geller as the
`
`ordering physician. The STAT sheet, preliminary report and final report all
`
`included Dr. Robins’ observation of the lung nodule and her recommendation
`
`for a CT scan. Dr. Robins testified that she directed the STAT sheet to Dr.
`
`Geller in the emergency room and then completed the preliminary and final
`
`reports, each of which identified Dr. Geller as a “cc” recipient.
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`J-A15043-16
`
`Verdict and post-trial proceedings. On November 4, 2014, the
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`jury found in favor of the Estate and awarded damages of $1,975,713.00.
`
`The jury found Hospital 33.4% liable, Dr. Geller 33.3% liable, and Dr.
`
`Aguirre 33.3% liable, but it returned a verdict in favor of Dr. Robins. REPA
`
`was not on the verdict sheet, but the parties stipulated during trial that Dr.
`
`Geller was acting as REPA’s agent on May 3, 2007, the date Decedent visited
`
`the emergency room.
`
`All parties filed post-trial motions. On May 15, 2015, Judge Massiah-
`
`Jackson denied Dr. Geller’s and REPA’s post-trial motions and entered
`
`judgment against Dr. Geller and REPA in the amount of $778,643.85,
`
`reflecting 33.3% of the compensatory and delay damages. These appeals
`
`followed, and all appellants and the trial court complied with Pa.R.A.P. 1925.
`
`The Estate settled with Dr. Aguirre and Hospital, but Hospital
`
`preserved its right in the settlement to pursue damages against Dr. Geller
`
`and REPA. The Estate filed a cross-appeal at 2092 EDA 2015 against Dr.
`
`Geller and REPA, but it later discontinued the appeal.
`
`Appeal of Dr. Geller and REPA at 1852 EDA 2015
`
`
`
`Dr. Geller and REPA raise the following issues in their appeal, which we
`
`have re-ordered for purposes of disposition:
`
`judgment
`trial court have entered a
`the
`1. Should
`notwithstanding the verdict in favor of [Dr.] Geller because [the
`Estate] failed to prove, by competent and sufficient evidence,
`her prima facie case of negligence against him?
`
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`J-A15043-16
`
`2. Whether the verdict against [Dr.] Geller was against the
`weight of the evidence?
`
`3. Whether the trial court committed an abuse of discretion
`and/or an error of law in precluding testimony as to [Dr.]
`Geller’s decision-making, thought process and standard practice
`with respect to abnormal lung nodule findings, which was
`unfairly prejudicial to [Dr.] Geller?
`
`4. Whether improper and prejudicial comments made by hospital
`counsel during closing arguments could not be cured by any
`curative instruction?
`
`5. Whether [the Estate’s] counsel was given disparate time to
`question witnesses, leaving Dr. Geller’s counsel very limited time
`within which to present his own testimony and the testimony of
`key defense witnesses?
`
`6. Whether the trial court erred in denying [Dr. Geller’s] motion
`for post-trial relief insofar as it failed to grant a new trial where
`[Dr.] Geller was denied his constitutional right to choice of
`counsel?
`
`7. In the alternative, whether the trial court improperly
`computed the amount of delay damages in contravention of
`applicable law?
`
`8. Whether the trial court improperly entered judgment against
`[REPA] where, among other things: REPA did not appear on the
`verdict slip; no direct allegations against REPA were made at
`trial; no finding against REPA was made by the jury; and when
`liability against REPA was not triggered as a matter of law?
`
`
`Brief For Dr. Geller and REPA, at 1-2.
`
`
`
`Dr. Geller first argues that the trial court improperly denied his post-
`
`verdict motion for judgment notwithstanding the verdict (“JNOV”), because
`
`he did not receive Dr. Robins’ reports about the nodule on Decedent’s lung
`
`and therefore could not be held liable for failing to act on the reports.
`
`The trial court can enter JNOV on two bases:
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`J-A15043-16
`
`(1) where the movant is entitled to judgment as a matter of law;
`and/or, (2) the evidence was such that no two reasonable minds
`could disagree that the verdict should have been rendered for
`the movant. When reviewing a trial court’s denial of a motion
`for JNOV, we must consider all of the evidence admitted to
`decide if there was sufficient competent evidence to sustain the
`verdict. In so doing, we must also view this evidence in the light
`most favorable to the verdict winner, giving the victorious party
`the benefit of every reasonable inference arising from the
`evidence and rejecting all unfavorable testimony and inference.
`Concerning any questions of law, our scope of review is plenary.
`Concerning questions of credibility and weight accorded the
`evidence at trial, we will not substitute our judgment for that of
`the finder of fact. If any basis exists upon which the court could
`have properly made its award, then we must affirm the trial
`court’s denial of the motion for JNOV. A JNOV should be entered
`only in a clear case.
`
`Brown v. Trinidad, 111 A.3d 765, 769–70 (Pa.Super.2015).
`
`
`
`
`Construed in the light most favorable to the Estate, the evidence
`
`defeats Dr. Geller’s claim of entitlement to JNOV. Dr. Robins, the
`
`radiologist, testified that her practice was to review the patient’s films; write
`
`her findings on a STAT sheet; dictate the findings on the STAT sheet onto
`
`the hospital phone system, where any other physician can retrieve it; send
`
`the STAT sheet to the ER; and later dictate preliminary and final reports. In
`
`this case, Dr. Robins followed these procedures. She wrote her findings on a
`
`STAT sheet, phoned a report into the hospital phone system, and drafted a
`
`preliminary report and final report. Dr. Geller himself admitted that as
`
`ordering physician, he was supposed to receive the STAT sheet and the
`
`radiologist’s preliminary report. The documentary evidence showed that Dr.
`
`Robins “cc’d” Dr. Geller on her preliminary and final reports. The clear
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`J-A15043-16
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`inference arising from this evidence is that Dr. Geller received not one but
`
`multiple reports from Dr. Robins.
`
`Dr. Geller attempts to counter these damaging facts by insisting that
`
`he received none of Dr. Robins’ reports, and that the normal flow of reports
`
`simply broke down in Decedent’s case. In making this argument, Dr. Geller
`
`construes the evidence in the light most favorable to himself, instead of in
`
`the light most favorable to the Estate, the proper standard of review.
`
`Viewed under the correct standard, the evidence demonstrates that Dr.
`
`Geller received Dr. Robins’ reports but failed to notify Decedent about the
`
`test results, thus allowing the nodule to grow over the next 20 months and
`
`cause Decedent’s death.
`
`Even assuming that Dr. Geller did not receive the reports, the trial
`
`court’s denial of JNOV was still proper. Dr. Porges, the Estate’s expert,
`
`opined that if Dr. Geller did not obtain the test results, he had a duty, as the
`
`physician who ordered the tests, to ensure that the next medical provider
`
`obtained and reviewed the test results. Dr. Geller breached this duty, said
`
`Dr. Porges, by failing to note on Decedent’s chart that the results of her
`
`tests were “still pending”. Thus, assuming Dr. Geller did not receive the
`
`report, the jury remained free to credit Dr. Porges’ opinion that Dr. Geller
`
`was negligent for failing to follow up on the tests he ordered.
`
`
`
`Dr. Geller’s second argument on appeal is that the trial court
`
`improperly denied his post-verdict motion seeking a new trial based on the
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`J-A15043-16
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`weight of the evidence. A weight of the evidence claim is addressed to the
`
`discretion of the trial judge. Armbruster v. Horowitz, 813 A.2d 698, 702
`
`(Pa.2002). The authority of the trial judge to upset the verdict on weight
`
`grounds
`
`is narrowly circumscribed. A trial judge cannot grant a new trial
`because of a mere conflict in testimony or because the trial
`judge on the same facts would have arrived at a different
`conclusion. Instead, a new trial should be granted only in truly
`extraordinary circumstances, i.e., when the jury’s verdict is so
`contrary to the evidence as to shock one’s sense of justice and
`the award of a new trial is imperative so that right may be given
`another opportunity to prevail.
`
`
`Id. at 703 (emphasis in original; internal citations omitted).
`
`
`
`The trial court acted within its discretion by determining that this case
`
`did not present extraordinary circumstances that shocked one’s sense of
`
`justice. The trial court aptly recognized that this was a “classic battle of
`
`conflicting expert opinion.” Trial Court Opinion, at 8. The Estate presented
`
`ample factual evidence that Dr. Geller received Dr. Robins’ reports, ample
`
`expert testimony that Dr. Geller’s performance fell below the standard of
`
`care whether or not he received the reports, and ample expert testimony
`
`that his breach of the standard of care caused Decedent’s death. The
`
`verdict indicates that the jury accepted the Estate’s theory of liability and
`
`causation. We see no reason to overturn the trial court’s decision to deny
`
`Dr. Geller a new trial based on the weight of the evidence.
`
`
`
`In his third argument on appeal, Dr. Geller contends that the trial
`
`court improperly excluded evidence of his experience in dealing with his
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`J-A15043-16
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`father’s lung cancer. He claimed that this evidence would have
`
`demonstrated that he would not have ignored the test results, because his
`
`own life experience sensitized him to lung cancer. He also claimed that this
`
`evidence was relevant under Pa.R.E. 406 to show his customary and habitual
`
`decisionmaking process in treating patients with Decedent’s symptoms.
`
`The admission or exclusion of evidence is a decision subject to the
`
`discretion of the trial court, whose decision will not be disturbed absent a
`
`clear abuse of that discretion, or an error of law. Dubose v. Quinlan, 125
`
`A.3d 1231, 1242-43 (Pa.Super.2015). The trial court properly excluded the
`
`proposed evidence as irrelevant and prejudicial.
`
`Evidence is relevant if: “(a) it has any tendency to make a fact more
`
`or less probable than it would be without the evidence; and (b) the fact is of
`
`consequence in determining the action.” Pa.R.E. 401. Dr. Geller’s
`
`interaction with his father did not make any consequential fact more or less
`
`probable. In no way did this evidence demonstrate whether Dr. Geller
`
`actually received Dr. Robins’ reports or explain whether he complied with the
`
`standards of reasonable medical care that he must meet in his professional
`
`capacity.
`
`Dr. Geller contends that the evidence was relevant under Pa.R.E. 406
`
`as evidence of his habits in treating patients with Decedent’s symptoms. We
`
`disagree. Pa.R.E. 406 provides in relevant part: “Evidence of a person’s
`
`habit … may be admitted to prove that on a particular occasion the person …
`
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`J-A15043-16
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`acted in accordance with the habit.” Pa.R.E. 406. Habit “connotes one’s
`
`conduct in a precise factual context, and frequently involves mundane
`
`matters (e.g., recording the purpose for checks drawn).” Comment, Pa.R.E.
`
`406. To establish a habit or custom, a party must prove behavior
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`approaching fixed regularity. See Baldridge v. Matthews, 106 A.2d 809,
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`811 (Pa.1956) (“whether evidence of such usage or habit is admissible to
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`show what occurred in a specific instance depends on the invariable
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`regularity of the usage or habit. To be admissible[,] the usage must have
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`sufficient regularity to make it probable that it would be carried out in every
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`instance or in most instances”) (internal quotations omitted).
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`Pennsylvania jurisprudence includes several interesting examples of
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`habit or custom evidence. In Baldridge, a hotel clerk testified that it was
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`the hotel’s uniform practice to require payment in advance if the guests
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`registered without luggage. The trial court ruled that the testimony was
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`admissible to demonstrate that the defendant and plaintiff’s wife had
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`baggage when they registered at the hotel. Our Supreme Court affirmed on
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`the basis that evidence of uniform practice is admissible without specific
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`examples as long as the testimony indicates that the practice was performed
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`with invariable regularity. Id., 106 A.2d at 811. Similarly, in Frey v.
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`Harley Davidson Motor Co., 734 A.2d 1 (Pa.Super.1999), a representative
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`of a dealership testified that the dealership had a routine practice of
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`disconnecting the jumper wires on the motorcycles it sold. We affirmed the
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`trial court’s reliance on the witness’s testimony to conclude that the
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`dealership was responsible for an inoperable jumper wire that had been cut.
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`Id., 734 A.2d at 10.
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`In addition, since our Supreme Court modeled Pa.R.E. 406 after F.R.E.
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`406,4 federal court decisions construing F.R.E. 406 are instructive in
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`interpreting Pa.R.E. 406.5 We find particularly persuasive the following
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`analysis of habit evidence by the D.C. Circuit Court of Appeals:
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`[H]abit refers to the type of nonvolitional activity that occurs
`with invariable regularity. It is the nonvolitional character of
`habit evidence that makes it probative. See, e.g., Levin v.
`United States, 338 F.2d 265, 272 (D.C.Cir.1964) (testimony
`concerning religious practices not admissible because ‘the very
`volitional basis of the activity raises serious questions as to its
`invariable nature, and hence its probative value’) … Thus, habit
`is a consistent method or manner of responding to a particular
`stimulus. Habits have a reflexive, almost instinctive quality. The
`advisory committee notes on Rule 406 illustrate this point:
`
`
`A habit ... is the person’s regular practice of meeting a
`particular kind of situation with a specific type of conduct,
`such as the habit of going down a particular stairway two
`stairs at a time, or of giving the hand-signal for a left turn,
`or of alighting from railway cars while they are moving.
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`____________________________________________
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`4 See Comment, Pa.R.E. 406 (“this rule is identical to F.R.E. 406”).
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` 5
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` See Commonwealth v. Hendricks, 546 A.2d 79, 81 (Pa.Super.1986)
`(because Pennsylvania rule of criminal procedure is modeled after federal
`rule of criminal procedure, “our interpretation of the Pennsylvania rule is
`accordingly guided by reference to federal cases” interpreting federal rule);
`Cambanis v. Nationwide Ins. Co., 501 A.2d 635, 637 n. 4
`(Pa.Super.1985) (where Pennsylvania rule fashioned upon federal rule,
`federal case law is instructive); Michigan Bank v. Steensen, 236 A.2d
`565, 566 n. 1 (Pa.Super.1967) (same).
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`The doing of the habitual acts may become semi-
`automatic.
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`Weil v. Seltzer, 873 F.2d 1453, 1460 (D.C.Cir. 1989).
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`Unlike the foregoing examples of habit provided by Pennsylvania and
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`federal courts, the manner in which Dr. Geller treated patients with
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`Decedent’s symptoms was not reflexive, instinctive, semi-automatic or
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`mundane in nature. Medical patients are not manufactured on assembly
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`lines; they each have unique attributes and idiosyncracies that call for
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`individualized care. The notion that Dr. Geller treats each patient with
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`Decedent’s symptoms as reflexively as, for example, the manner in which he
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`climbs stairs is preposterous. His proposed testimony fell well outside the
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`boundaries of Pa.R.E. 406.
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`Even if this proposed testimony was relevant, the trial court properly
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`excluded it under Pa.R.E. 403. This rule provides that “the court may
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`exclude relevant evidence if its probative value is outweighed by a danger of
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`one or more of the following: unfair prejudice, confusing the issues,
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`misleading the jury, undue delay, wasting time, or needlessly presenting
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`cumulative evidence.” In our view, the injection of testimony about Dr.
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`Geller’s father’s cancer was a transparent ploy to generate sympathy for Dr.
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`Geller’s personal travails and divert the jury’s attention from the core issue
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`of whether he met the standard of care in his treatment of Decedent.
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`
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`In his fourth argument on appeal, Dr. Geller objects to the following
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`comments by Hospital’s counsel during closing argument:
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`Roxborough Memorial Hospital agreed that we stand behind our
`doctors. They are our ostensible agents. What that means is if
`you find against Dr. Robins, Dr. Geller, or Dr. Aguirre, the judge
`later is going to assign responsibility also to Roxborough
`Memorial Hospital. So whatever award you would make against
`one will also be made against Roxborough Memorial Hospital.
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`Tr., 11/13/14, at 188-89. According to Dr. Geller, the jury misconstrued
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`this remark to mean that any award will be paid by Hospital instead of by a
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`doctor, so the jury did not have to worry that its verdict might cripple Dr.
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`Geller financially.
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`Dr. Geller waived this argument due to his failure to object to this
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`remark during closing argument or afterward. Pa.R.A.P. 302(a) (“Issues not
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`raised in the lower court are waived and cannot be raised for the first time
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`on appeal”); Craley v. Jet Equipment & Tools, Inc., 778 A.2d 701, 706-
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`07 (Pa.Super.1997) (party’s failure to object to opponent’s closing argument
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`constituted waiver).
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`Anticipating this waiver obstacle, Dr. Geller claims that he could not
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`make any objections because the trial court directed counsel to refrain from
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`objections during closing arguments, and it would have been “meaningless
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`and futile” to object afterward. Given that the trial court instructed counsel
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`to remain silent during closing argument, it is understandable that Dr.
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`Geller’s attorney did not object when Hospital’s attorney made the remark in
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`question. On the other hand, we are unconvinced by Dr. Geller’s claim that
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`a post-argument objection at sidebar would have been an exercise in futility.
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`Had the court sustained a post-argument objection, it could have cured any
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`prejudice by instructing the jury not to construe Hospital’s counsel’s remarks
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`in the manner feared by Dr. Geller, or, if it considered the prejudice
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`irremediable, it could have declared a mistrial. Because Dr. Geller failed to
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`make a post-argument objection, he cannot complain about Hospital’s
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`counsel’s comment now.
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`Even if Dr. Geller had preserved this issue for appeal, Hospital’s
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`counsel’s comment was proper. The parties stipulated during trial that Drs.
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`Geller, Robins and Aguirre were ostensible agents of Hospital, which entitled
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`Hospital to point out to the jury that any award it entered against these
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`physicians would be entered against Hospital as well. Moreover, Dr. Geller’s
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`claim of prejudice rings hollow when we consider that the jury returned a
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`verdict for Dr. Robins even though Hospital’s counsel made the same
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`comment about her during closing argument.
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`In his fifth argument, Dr. Geller complains that he had “very limited”
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`time to present a key defense witness, his standard of care expert, Dr.
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`Thomas Rebbecchi, because the trial court permitted Estate’s attorney to use
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`up most of the allotted time that day with repetitive questioning of two other
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`witnesses. Dr. Geller waived this argument by failing to make any pertinent
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`objection on the record. Pa.R.A.P. 302(a). Moreover, Dr. Geller fails to
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`identify any subjects about