J-A04014-15

* Retired Senior Judge assigned to the Superior Cou rt NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

FRANK C. MAMONE AND LINDA MAMONE, HUSBAND AND WIFE, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellants

v. ST. CLAIR MEMORIAL HOSPITAL; OWEN T. TRAYNOR, M.D. & UPMC EMERGENCY MEDICINE, INC., Appellees No. 787 WDA 2014

Appeal from the Judgment Entered May 12, 2014 In the Court of Common Pleas of Allegheny County Civil Division at No(s): GD-09-013201 BEFORE: OLSON, WECHT AND STRASSBURGER,* JJ. MEMORANDUM BY OLSON, J.: FILED APRIL 21, 2015 Appellants, Frank C. Mamone (“Mr. Mamone”) and Lind a Mamone (“Mrs. Mamone”), appeal from the judgment entered o n May 12, 2014. We

affirm. The factual background of this case is as follows. According to Mrs. Mamone, at approximately 6:30 a.m. on July 20, 2007 , she was tossing and turning in bed at which time Mr. Mamone asked her i f she were okay. At 7:00 a.m., Mrs. Mamone awoke and discovered that Mr . Mamone, who was lying next to her, was unresponsive. Mr. Mamone wa s transported via ambulance to St. Clair Memorial Hospital (“St. Clai r”). Mr. Mamone arrived at St. Clair at 7:56 a.m. At 8:00 a.m., nurse Mell issa Vietmeier (“Ms.J-A04014-15

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Vietmeier”) administered the National Institute of Health Stroke Scale (“NIHSS”) test. She documented a score of 16. Dr. Owen T. Traynor (“Dr. Traynor”) began to care for Mr. Mamone at 8:07 a.m. Dr. Traynor was employed by UMPC Emergency Medicine, Inc. (“UPMC”). At 8:15 a.m., Mrs. Mamone arrived at St. Clair after driving herself. At 8:50 a.m., Dr. Traynor ordered a CT scan of Mr. Mamone’s brain. At 9:07 a.m., the radiologist informed Dr. Traynor that the CT scan was negative. At 11:26 a.m., Dr. Traynor requested a n eurological consultation. After this consultation, Mr. Mamone was transferred to UPMC PresbyterianShadyside Hospital (“Shadyside”) for surgery to rem ove the blood clot in his brain. As a result of the stroke, Mr. Mamone suffe red permanent brain damage. We also briefly review relevant medical issues in this case. Generally, there are two types of strokes, ischemic and hemorr hagic. Ischemic strokes are caused by a blockage in a blood vessel in the b rain while hemorrhagic strokes are caused by the rupture of a blood vessel in the brain. It is undisputed that the standard of care for the treatm ent of ischemic strokes, both in July 2007 and presently, calls for the admi nistration of recombinant tissue plasminogen activator (“tPA”) within three h ours of the patient last being neurologically normal. When a patient wakes up with stroke symptoms, it is called a wake-up stroke and the pat ient is considered to have last been neurologically normal when he or she fell asleep as there isJ-A04014-15

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no way of knowing when the stroke began. The tPA t reatment is administered intravenously and generally is able to dissolve the clot in the blood vessel. However, tPA cannot be safely admini stered to patients suffering from a hemorrhagic stroke nor to patients that have been suffering an ischemic stroke for longer than three hours. The relevant procedural history of this case is as follows. Appellants commenced this action on July 22, 2009 by filing a writ of summons. On October 19, 2009, Appellants filed a complaint agai nst, inter alia , Dr. Traynor, St. Clair, and UPMC (collectively “Defenda nts”). Appellants’ complaint alleged that Dr. Traynor committed medica l malpractice. The complaint further alleged that St. Clair and UPMC w ere vicariously liable for Dr. Traynor’s malpractice. On or before September 18, 2012, Appellants served Defendants with several expert reports, inter alia , an expert report authored by Dr. Steven R. Levine (“Dr. Levine”). On August 28, 2013, Defenda nts disclosed that Dr. James M. Gebel, Jr. (“Dr. Gebel”) would serve as an expert witness on their

behalf. 1 On September 23, 2013, Dr. Gebel authored an expe rt report. Appellants filed a motion to compel and, on October 2, 2013, Appellants

1 The large gap between the filing of Appellants’ ex pert report and Defendants’ disclosure of Dr. Gebel as an expert wa s caused by a procedural irregularity. Trial was originally scheduled to co mmence in March 2013 and Appellants’ report was filed based upon that trial date. Thereafter, however, Appellants requested a continuance. Trial was then rescheduled for October 2013 and Defendants’ disclosure was made pursuant t o the deadlines established for the new trial date.J-A04014-15

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received Dr. Gebel’s expert report. On October 9, 2013, Appellants filed Dr. Levine’s supplemental expert report. On October 24 , 2013, Defendants filed Dr. Gebel’s supplemental expert report. 2 On October 25, 2013, Defendants moved to quash noti ces to attend/notices to produce directed to representativ es of St. Clair and UPMC. That same day, Defendants moved in limine to prohibit cross-examination of Dr. Traynor regarding any authoritative source. On October 28, 2013, Appellants moved in limine to strike Dr. Gebel’s supplemental expert report. Jury selection occurred on October 28, 2013. On Oc tober 29, 2013, the trial court denied Appellants’ motion in limine , granted Defendants’ motion in

limine in part (permitting cross-examination of Dr. Trayno r using only the

American Stroke Association’s Guidelines for the Ea rly Management of Adults with Ischemic Stroke (“ASA Guidelines”)), and grant ed Defendants’ motions to quash. That same day, the jury was sworn and tr ial commenced. On November 6, 2013, the jury returned a verdict in fa vor of Defendants. The jury concluded that Dr. Traynor did not breach the standard of care.

2 Appellants argue that this supplemental expert rep ort was filed at 2:00 p.m. on October 25, 2013. The certified record rev eals, however, that the supplemental expert report was filed at 2:50 p.m. o n October 24, 2013. See Defendants’ Supplemental Pretrial Statement, 10/24 /13, at 1.J-A04014-15

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Appellants filed a post-trial motion on November 15 , 2013. The trial court denied the post-trial motion on April 24, 2014. Th is timely appeal followed. 3 Appellants present four issues for our review:

1. Whether the trial court erred by refusing to grant [Appellants’] motion to strike/motion in limine to preclude testimony of [Dr. Gebel] as to matters set forth in a supplemental re port dated October 22, 2013, served on the eve of trial, ident ifying new and difficult medical issues that [Appellants] were req uired to address at trial without a reasonable time to consu lt with medical experts[?]

2. Whether the trial court erred by permitting Dr. Geb el to testify to a congenital absence or abnormality of [Mr. Mamone’ s] posterior communicating artery, which went beyond the fair sc ope of both his original and supplemental reports[?]

3. Whether the trial court erred by granting Defendant s’ motion in limine limiting [Appellants’] cross-examination of [Dr. T raynor] and prohibiting [Appellants] from cross-examining D r. Traynor as to any authoritative sources other than the [ASA Guidelines?]

4. Whether the trial court erred by granting Defendant s’ motions to quash notices to attend/notices to produce directed to designated representatives of [St. Clair and UPMC] which sought testimony related to a staffing agreement between [ St. Clair and UPMC] and the operation of [St. Clair’s] emergency department[?] Appellants’ Brief at 5 (certain capitalization and honorifics omitted). In their first issue, Appellants contend that the trial court erred by denying their motion in limine to strike Dr. Gebel’s supplemental expert

3 On May 16, 2014, the trial court ordered Appellant s to file a concise statement of errors complained of on appeal (“conci se statement”). See Pa.R.A.P. 1925(b). On May 22, 2014, Appellants fil ed their concise statement. On August 19, 2014, the trial court iss ued its Rule 1925(a) opinion. All issues raised on appeal were included in Appellants’ concise statement.J-A04014-15

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report. “When reviewing a ruling on a motion in limine , we apply an evidentiary abuse of discretion standard of review. The admission of

evidence is committed to the sound discretion of th e trial court and our

review is for an abuse of discretion.” Commonwealth v. Parker , 104 A.3d 17, 21 (Pa. Super. 2014) (citation omitted). “An a buse of discretion occurs where the law is overridden or misapplied, or the j udgment exercised is manifestly unreasonable, or the result of partialit y, prejudice, bias, or ill will, as shown by the evidence or the record.” Commonwealth v. Adams , 104 A.3d 511, 517 (Pa. 2014) (internal quotation marks and citation omitted). Pennsylvania Rule of Civil Procedure 4003.5 provid es, in relevant part, [(a)(1)(B)] A party may through interrogatories req uire . . . the other party to have each expert so identified state the substance of the facts and opinions to which the expert is ex pected to testify and a summary of the grounds for each opini on. The party answering the interrogatories may file as his or her answer a report of the expert or have the interrogatories answered by the expert.

* * * (c) To the extent that the facts known or opinions held by an expert have been developed in discovery proceedings under subdivision (a)(1) or (2) of this rule, the direct testimony of the expert at the trial may not be inconsistent with or go beyond the fair scope of his or her testimony in the discovery proceedings as set forth in the deposition, answer to an interroga tory, separate report, or supplement thereto.

Pa.R.C.P. 4003.5. Furthermore, An expert report . . . shall encompass all issues i n the liability phase of the case, including issues of professional negligenceJ-A04014-15

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and causation of harm, for which a party to whom a request has been directed will offer expert testimony at trial in support of claims made against the requesting party or in supp ort of defenses raised to the requesting party’s claims. The report shall reflect the best information available to the party producing the report at the time it is produced. Pa.R.C.P. 1042.27(b)(2). Finally, with respect to the filing and production of expert reports prior to trial, the local rules of the Court of Common Pl eas of Allegheny County provide that: After a plaintiff has filed a praecipe requesting t hat the case be placed on the next available trial list, each other party in the case shall file within [60] days expert reports sum marizing all expert testimony that will be offered by that party to support the defenses to the plaintiff’s claims and to support a ny claims and defenses involving other parties. After [60] days, each other party’s right to file additional/supplemental repor ts is subject to the provisions of subsection (7)(d) of this local r ule. (d)(i) A party may file a supplemental expert repor t which responds to an opposing expert report within [60] d ays after the opposing expert report was filed. (ii) Except as provided in subsection (7)(d)(i), a party may not file a supplemental expert report which introduces a new theory of liability of causation or a new defense without leave of Court for good cause shown. (iii) Except as provided in subsection (7)(d)(i), a party may not subsequently file an expert report prepared by a ne w expert without leave of Court for good cause shown. Allegheny County Local Rule 4003.5(7). Appellants contend that Dr. Gebel’s supplemental e xpert report violated Local Rule 4003.5(7)(d)(ii) because it int roduced new defenses. This argument, however, fails to recognize that Dr. Gebel’s supplementalJ-A04014-15

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expert report was filed in response to Dr. Levine’s October 9, 2013 supplemental expert report – which was filed two we eks prior to the commencement of trial. The new topics addressed in Dr. Gebel’s supplemental expert report were in direct response to Dr. Levine’s supplemental expert report and, therefore, Defendan ts were not required to seek leave of court to file Dr. Gebel’s supplementa l expert report. In his supplemental expert report, Dr. Levine opin ed that, “If, [] as Dr. Gebel opines, [Mr. Mamone] was far outside the [thr ee]-hour window with a wake-up stroke then his head CT scan would almost c ertainly have evidence of ischemic changes more obvious than those seen on the imaging.” Dr. Levine Supplemental Expert Report, 10/9/13, at 3. Dr. Levine further opined that “[T]he conclusion that Dr. Gebel reache s about being ‘essentially 100% certain’ that [Mr. Mamone] would not have achi eved successful recanalization had such a therapy been attempted is not accurate[.]” Id. at 5. Dr. Levine similarly opined that, “The negligen ce of Dr. Traynor caused and/or increased [Mr. Mamone’s] risk of developing the type of permanent deficits that he developed subsequent to and as a d irect result of his ischemic stroke[.]” Id. at 2. Appellants primarily object to Dr. Gebel’s opinion s, in his supplemental report, regarding imaging studies that were done at Shadyside. These opinions, however, were in direct response to Dr. L evine’s supplemental expert report. Specifically, Dr. Gebel stated that the ischemic changesJ-A04014-15

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referenced by Dr. Levine were actually present in t he CT scans and supported his opinion that Mr. Mamone experienced a wake-up stroke and the alleged interaction with Mrs. Mamone at 6:30 a. m. did not constitute the last time Mr. Mamone was neurologically normal. Dr . Gebel’s opinions with respect to the scans at Shadyside also refuted Dr. Levine’s opinion that administration of tPA would likely have prevented t he injuries that Mr.

Mamone suffered as a result of the stroke.

We find instructive this Court’s decision in Keffer v. Bob Nolan’s Auto Serv., Inc. , 59 A.3d 621 (Pa. Super. 2012), appeal denied , 69 A.3d 602 (Pa. 2013). In that case, the defense expert f iled a supplemental expert report which expressed opinions in response to the plaintiff’s expert’s supplemental report. The plaintiff thereafter move d to strike the defense expert’s supplemental report and to bar the defense expert from testifying as to the newly expressed opinions. This Court hel d that: The record is devoid of any evidence of a willful v iolation of the discovery rules or bad faith by the [d]efendants. The [d]efendants did not hide the identity of their exp ert and did not attempt a “trial by ambush.” On the contrary, [the ] supplemental report was necessary only because [pla intiff’s] supplemental report introduced new issues in respon ding to [the defense expert’s] two prior reports.

Keffer , 59 A.3d at 654. The same thing occurred in this case. Dr. Levine’s supplemental expert report included new opinions in response to Dr. Gebel’s original expert report. Dr. Gebel therefore responded by fi ling a supplementalJ-A04014-15

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expert report that addressed Dr. Levine’s new opini ons. Such a practice has become commonplace in today’s civil litigation, par ticularly in medical malpractice litigation. It does not amount to tria l by ambush; rather, it permits both parties to narrow the issues for trial by highlighting the opinions that will be offered by expert witnesses f or the factfinder’s consideration. As Dr. Gebel’s supplemental expert report was a legitimate response to Dr. Levine’s supplemental expert report , the trial court did not abuse its discretion in denying Appellants’ motion to strike Dr. Gebel’s supplemental expert report. Furthermore, even if the trial court erred by deny ing Appellants’

motion in limine , that error was harmless. “An error is harmless i f the court

determines that the error could not have contribute d to the verdict.” Bensinger v. Univ. of Pittsburgh Med. Ctr. , 98 A.3d 672, 683 n.12 (Pa. Super. 2014) (internal alterations and citation omi tted). Dr. Gebel’s supplemental expert report is focused primarily on causation, not the standard of care or any departure therefrom. Speci fically, Dr. Gebel’s supplemental expert report discusses six discrete f actors. The report summarizes these six factors and states that “[t]he only reasonable conclusion is that [Mr. Mamone] would have not in a ny way benefited from IV t[PA] (or any other recanalization) therapy had it been administered at any time from his arrival at St. Clair[.]” Dr. Geb el Supplemental Expert Report, 10/23/13, at 4. This conclusion, and a det ailed review of the expertJ-A04014-15

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opinions offered in this case by all parties, indic ates that Dr. Gebel’s discussion of the six factors only addressed causat ion and not the standard

of care.

As [t]he jury found no negligence on the part of [the] defendant, [it] never reached the issues of causation or damag es. Therefore, any error with regard to the testimony o n causation was harmless and cannot be the basis for a new tria l. . . . Plaintiffs suggest that the jurors may have decided there was no negligence because they thought there was no causat ion, but this is sheer conjecture. Zoppi v. Seok , 51 Pa. D. & C.4th 541, 554–555 (C.C.P. Lehigh 200 1), aff’d , 804 A.2d 72 (Pa. Super. 2002) (unpublished memorand um); see Parr v.

Ford Motor Co

. , 2014 WL 7243152, *14 (Pa. Super. Dec. 22, 2014) ( en banc ) (error in admission of causation evidence was har mless as the jury did not reach the issue of causation); see also Boyle v. Indep. Lift Truck,

Inc. , 6 A.3d 492, 496 (Pa. 2010) (issue of comparative negligence went to causation and since the jury found that the defenda nt was not negligent any error regarding the admission of comparative neglig ence evidence was harmless); Jewelcor Jewelers & Distribs., Inc. v. Corr , 542 A.2d 72, 80 (Pa. Super. 1988), appeal denied , 569 A.2d 1367 (Pa. 1989) (same); Mickey v. Ayers , 485 A.2d 1199, 1203 (Pa. Super. 1984) (same); Robinson v. Philadelphia , 478 A.2d 1, 3-4 (Pa. Super. 1984) (same); Ries v. MTD Products, Inc. , 456 A.2d 211, 214 (Pa. Super. 1983) (same); Dean v. Trembley , 137 A.2d 880, 883 (Pa. Super. 1958) (same); WhittonJ-A04014-15

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v. H.A. Gable Co. , 200 A. 644, 646 (Pa. 1938) (same); cf. Harkins v. Calumet Realty Co. , 614 A.2d 699, 707 (Pa. Super. 1992) (same with respect to superseding cause). Appellants identify only three parts of Dr. Gebel’s supplemental expert report that implicate the standard of care and sugg est that Dr. Traynor breached a duty owed to Mr. Mamone by failing to ad minister tPA. These topics include (1) the fact that Mr. Mamone experie nced a wake-up stroke; (2) the inability of St. Clair to provide tPA withi n 90 minutes; and (3) the

size of Mr. Mamone’s stroke. 4 However, the record confirms that Dr. Gebel’s original expert report discussed these three issues . As to the wake-up stroke portion of the report, Appellants concede th at Defendants’ theory throughout the case was that Mr. Mamone suffered fr om a wake-up stroke.

See Appellants’ Brief at 12. In his original expert r eport, Dr. Gebel’s first

4 These three issues relate to standard of care, and not causation, because they impact whether or not Dr. Traynor should have administered tPA within the three-hour time frame. If Mr. Mamone suffered a wake-up stroke, he was not a candidate for tPA. If St. Clair were not equipped to diagnose a stroke and treat with tPA within 90 minutes, Dr. Tr aynor did not breach the standard of care. Finally, if Mr. Mamone had a lar ge stroke he was not a candidate for tPA. Therefore, these three issues r elated to the jury’s determination regarding whether Dr. Traynor breache d the standard of care. On the other hand, the remaining issues Dr. Gebel d iscussed in his supplemental expert report addressed what would hav e occurred if Dr. Traynor had administered tPA to Mr. Mamone within 9 0 minutes of his arrival at St. Clair. Dr. Gebel opined, in his supplementa l expert report, that if Mr. Mamone had been administered tPA within that 90 min ute timeframe it would have had little to no impact on Mr. Mamone’s recovery from the stroke. Therefore, these other issues went to the issue of causation and not to the standard of care, or breach thereof.J-A04014-15

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opinion was that Mr. Mamone suffered from a wake-up stroke. Dr. Gebel Expert Report, 9/23/13, at 3. As to the ability of St. Clair to provide tPA within 90 minutes, that issue was also discussed in Dr. Gebel’s original expert report. Id. at 4. Appellants spend a significant portion of their bri ef arguing that Dr. Gebel’s opinion related to the size of Mr. Mamone’s stroke was a new addition to Dr. Gebel’s supplemental expert report. Dr. Gebel’s opinion regarding the size of Mr. Mamone’s stroke, however, was discussed in Dr. Gebel’s original expert report. Specifically, Dr. Gebel noted that, correctly calculated, Mr. Mamone had an NIHSS stroke score of 26. Dr. Gebel’s Expert Report, 9/23/13, at 2. A large stroke is co nsidered any stroke where the patient’s NIHSS stroke score is greater than 20 . Dr. Gebel’s opinion relating to the size of Mr. Mamone’s stroke was, th erefore, within the fair scope of his original expert report. Thus, even if the trial court granted Appellants’ motion to strike, Dr. Gebel’s testimony on topics relating to standard of care identified by Appellants would not have been precluded. Accordingly, any error in failing to grant Appellan ts’ motion in limine and strike Dr. Gebel’s supplemental expert report was h armless. In their second issue on appeal, Appellants argue that the trial court erred in permitting Dr. Gebel to testify regarding a congenital absence or abnormality of Mr. Mamone’s posterior communicating artery. As this Court has explained:J-A04014-15

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The admission of expert testimony is within the tri al court’s sound discretion and we will not disturb that decis ion without a showing of manifest abuse of discretion. An expert ’s testimony on direct examination is to be limited to the fair scope of the expert’s pre-trial report. In applying the fair sc ope rule, we focus on the word fair. Departure from the expert’ s report becomes a concern if the trial testimony would prev ent the adversary from preparing a meaningful response, or which would mislead the adversary as to the nature of the respo nse. Therefore, the opposing party must be prejudiced as a result of the testimony going beyond the fair scope of the ex pert’s report before admission of the testimony is considered rev ersible error. We will not find error in the admission of testimon y that the opposing party had notice of or was not prejudiced by. Whitaker v. Frankford Hosp. of Phila. , 984 A.2d 512, 522 (Pa. Super. 2009) (internal quotation marks and citation omitte d); see Pa.R.C.P. 4003.5(c). Appellants argue that Dr. Gebel never discussed a c ongenital absence or abnormality of Mr. Mamone’s posterior communicat ing artery in his original expert report nor in his supplemental expe rt report. We conclude

that the trial court did not abuse its discretion b y permitting Dr. Gebel to testify regarding a congenital absence or abnormali ty of Mr. Mamone’s posterior communicating artery because such testimo ny was within the fair scope of his expert reports. Appellants’ argument regarding Dr. Gebel’s testimon y is flawed for two reasons. First, Appellants entire argument is prem ised on the fact that certain terms were not present in Dr. Gebel’s exper t reports. For example, Appellants argue that, because Dr. Gebel’s expert r eports “never mention the terms ‘congenital’, ‘anatomy’, ‘anatomical vari ation’ or ‘abnormality,’”J-A04014-15

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Dr. Gebel’s testimony was outside the fair scope of his expert reports. Appellants’ Brief at 41. Our Supreme Court, howeve r, has rejected use of this “magic words” approach to determining if an ex pert’s testimony is within the fair scope of his or her expert report. See Mitzelfelt v. Kamrin , 584 A.2d 888, 894 (Pa. 1990); see also Expressway 95 Bus. Ctr., LP v. Bucks Cnty. Bd. of Assessment , 921 A.2d 70, 79 (Pa. Cmwlth. 2007) (internal quotation marks and citation omitted) (“A n expert’s trial testimony that constitutes a reasonable explanation or even a n enlargement of the expert’s written words may be deemed to fall within the coverage of fair scope.”). Instead, our Supreme Court has instructe d that we must view Dr. Gebel’s testimony in its entirety, along with his e xpert reports, to determine if the testimony was within the fair scope of his e xpert reports. See

Mitzelfelt , 584 A.2d at 894; see also Hickman v. Fruehauf Corp. , 563 A.2d 155, 157 (Pa. Super. 1989), appeal denied , 596 A.2d 158 (Pa. 1991). Furthermore, Appellants’ argument is premised on th e assumption that Dr. Gebel could only testify as to opinions set for th in his original expert report and not those opinions expressed in his supp lemental expert report. This, however, is an incorrect interpretation of Ru le 4003.5(c). Rule 4003.5(c) expressly states that an expert witness m ay testify regarding opinions that he or she offered in a supplemental r eport. In this case, as discussed above, the trial court declined to strike Dr. Gebel’s supplemental expert report and we have determined that the trial court did not abuse itsJ-A04014-15

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discretion in so ruling. Therefore, Dr. Gebel was permitted to testify at trial regarding opinions included in both his original ex pert report and his supplemental expert report. With these principles in mind, we carefully reviewe d Dr. Gebel’s original expert report and his supplemental expert report. When considered as a whole, we conclude that the expert reports fai rly encompass his opinion expressed at trial that there was a congenital abse nce or abnormality of Mr. Mamone’s posterior communicating artery. Specifica lly, in his supplemental expert report, Dr. Gebel opined there was “angiogra phic evidence of no or minimal left posterior communicating artery.” Dr. Gebel Supplemental Expert Report, 10/23/13, at 4. Dr. Gebel’s supplemental expert report used the phr ase “no or

minimal” instead of the term “absence or abnormalit y.” There is no substantive difference between this terminology. T he word “absence” means “the fact of being without something; lack.” Collin’s English Dictionary (10 th ed. 2012). Dr. Gebel’s supplemental expert report opined that there was evidence that there was no, or lack of a, posterior communicating artery. Similarly, a posterior commu nicating artery that is normal is not “minimal.” Thus, it is abnormal. See id. (defining abnormal as “not normal; deviating from the usual or typical ; extraordinary.”). Therefore, Dr. Gebel’s trial testimony aligned clos ely with the opinion contained within his supplemental expert report. A s such, Dr. Gebel’s trialJ-A04014-15

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testimony was within the fair scope of his expert r eports and the trial court did not abuse its discretion by permitting him to t estify regarding a congenital absence or abnormality of Mr. Mamone’s p osterior communicating artery. Furthermore, even if the trial court erred by permi tting Dr. Gebel’s testimony, such error was harmless. Dr. Gebel’s te stimony regarding the absence or abnormality of Mr. Mamone’s posterior co mmunicating artery addressed causation. Specifically, this testimony attempted to prove that even if Dr. Traynor administered tPA within 90 minu tes of Mr. Mamone’s arrival at St. Clair, Mr. Mamone would not have suc cessfully recovered. Contrary to Appellants’ assertions, this testimony was not offered to prove that Dr. Traynor had breached the standard of care. 5 As noted above, when a trial court errs by admitting evidence relating t o causation and the jury determines that the defendants were not negligent, such error is harmless. Accordingly, even if the trial court erred by permi tting Dr. Gebel’s testimony, Appellants would not be entitled to relief on appea l. In their third issue, Appellants argue that the tri al court erred by granting Defendants’ motion in limine regarding the cross-examination of Dr. Traynor. The trial court ruled that Appellants cou ld not cross-examine Dr.

5 Appellants argue that the fact that Dr. Gebel was qualified as an expert regarding standard of care is dispositive. Dr. Geb el, however, was offered as an expert in both standard of care and causation

. See N.T., 11/4/13, at 884. Accordingly, his opinions must be examined to determine if they addressed standard of care or causation.J-A04014-15

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Traynor with respect to any authoritative source ot her than the ASA Guidelines. Appellants argue that they intended to cross-examine Dr. Traynor regarding other learned treatises, inter alia , The Streetmedic’s

Handbook , Owen T. Traynor et al (2004). We conclude that Appellants waived this issue. “It is axiomatic that

‘issues not raised in the lower court are waived an d cannot be raised for the first time on appeal.’” Commonwealth v. Tejada , 107 A.3d 788, 797 (Pa. Super. 2015), quoting Pa.R.A.P. 302(a) (internal alteration and other ci tation omitted). In this case, Defendants filed a motion in limine on the eve of trial seeking to prohibit Dr. Traynor from being cross-ex amined with any learned treatise or similar document. Appellants did not f ile a written response. The

motion in limine was argued in chambers prior to the commencement o f trial. The trial court asked Appellants’ counsel “Do you have medical treatises you’re going ---” N.T., 10/29/13, at 48. Before the trial court could finish its question, Appellants’ counsel replied “Y eah. I’m going to ask him

about the American Heart Association American Strok e Association guidelines.” Id. The trial court ruled that such cross-examination was proper in this case. See id. at 48-49. Appellants’ counsel did not aver that he was planning on using The Streetmedic’s Handbook or any other learned treatise to cross-examine Dr. Traynor. Instead, af ter Appellants’ counsel stated he was planning on using the ASA Guidelines, the trial court grantedJ-A04014-15

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Defendants’ motion in limine in part and the parties proceeded to the next pre-trial matter. 6 “One of the purposes of the waiver rule is to call alleged errors to the trial court’s attention, and give the court the opp ortunity to correct the

error.” Stein v. Commw., Dep’t of Transp., Bureau of Licensin g , 857 A.2d 719, 724 n.8 (Pa. Cmwlth. 2004) (citation omit ted); see also Parker , 104 A.3d at 29 (citations omitted). In this case, Appellants did not alert the trial court of the alleged error and give it an opp ortunity to correct itself. Instead, the trial court believed that it was rulin g in Appellants’ favor because it granted Appellants everything they reque sted – permission to cross-examine Dr. Traynor using the ASA Guidelines. In their reply brief, Appellants concede they did not give the trial cour t an opportunity to correct its alleged error. See Appellants’ Reply Brief at 21 n.23 (conceding the trial court believed the parties had reached a stipulatio n regarding what Appellants could use to cross-examine Dr. Traynor). Appellants cannot thereafter argue that the trial court’s ruling was erroneous and entitles them to a new trial. Accordingly, Appellants have waive d their third issue on appeal.

6 To the extent Appellants argue that this issue was preserved elsewhere in the record, that argument is waived. See Pa.R.A.P. 2117(c) (requiring that an appellant’s brief include a statement of where a n issue was preserved in the record); Pa.R.A.P. 2101 (allowing an appellate court to find waiver when an appellant fails to comply with the applicable ru les of appellate procedure).J-A04014-15

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In their final issue on appeal, Appellants argue th at the trial court erred by granting Defendants’ motions to quash noti ces to attend/notices to produce directed to particular employees of UPMC an d St. Clair. The notices to attend/notices to produce sought evidence relati ng to the staffing agreement between St. Clair and UPMC. We review th e trial court’s rulings on the motions to quash for an abuse of discretion. Appellants argue that they were prejudiced by the t rial court’s quashal of their notices to attend/notices to produce becau se they did not have “the opportunity to present evidence regarding Dr. Trayn or’s obligations under the [s]taffing [a]greement[.]” Appellants’ Brief a t 52. They also argue that they were prohibited “from showing that Dr. Traynor had a separate duty to assist [St. Clair] in development of policies and p rocedures for [St. Clair’s emergency department], including an organized proto col for treatment of ischemic stroke patients.” Id. at 53-54. As this information was irrelevant to the issues at trial, the trial court did not abu se its discretion in granting Defendants’ motions to quash. Dr. Traynor’s obligations under the staffing agreem ent were immaterial to this case. The complaint in this cas e only alleged that Dr. Traynor breached his duty of due care by failing to administer tPA to Mr.

Mamone within the three-hour treatment window. See Complaint, 10/19/09, at 8-9. Appellants’ complaint did not al lege that Dr. Traynor was negligent in developing practices and procedures fo r St. Clair’s treatment ofJ-A04014-15

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stroke patients. See id. Dr. Traynor’s obligations and duties under the staffing agreement were therefore immaterial to dete rmining whether he breached the standard of care with respect to Mr. Mamone ’s treatment. Furthermore, Appellants did not assert a separate claim against St. Clair and/or UPMC for having inadequate practices and procedu res in place for the treatment of stroke patients. See id. Instead, the complaint only alleged that St. Clair and UPMC were vicariously liable for t he actions of Dr. Traynor.

See id. Accordingly, the information sought by the notices to attend/notices to produce was not relevant to this case. The trial co urt therefore acted within its discretion by granting Defendants’ motions to quash. In sum, we conclude that the trial court did not abuse i ts discretion by declining to strike Dr. Gebel’s supplemental expert rep ort. Dr. Gebel’s testimony at trial was within the fair scope of his orig inal and/or supplemental expert reports. Furthermore, any error in declining to strike Dr. Gebel’s supplemental expert report and/or permitt ing his trial testimony was harmless. Appellants have waived their challenge t o the trial court’s

restriction on materials that could be used to cross-exami ne Dr. Traynor. Finally, the trial court did not abuse its discretion i n granting Defendants’ motions to quash. Judgment affirmed.

Judgment Entered.J-A04014-15

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Joseph D. Seletyn, Esq. Prothonotary Date: 4/21/2015