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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 

PIERRETTE DUVLAIRE-STACK AND 

ROBERT MORTIMER, INDIVIDUALLY AND 

AS W/H, 

Appellants 

v. 

ROBERT A. WILSON AND OLIVIA L. 

WILSON, 

Appellees 

IN THE SUPERIOR COURT 

OF 

PENNSYLVANIA 

No. 3518 EDA 2018 

Appeal from the Order Entered November 15, 2018 

In the Court of Common Pleas of Delaware County 

Civil Division at No(s): 2015-0055693 

BEFORE: BENDER, P.J.E., GANTMAN, P.J.E., and COLINS, J.* 

MEMORANDUM BY BENDER, P.J.E.: FILED AUGUST 12, 2019 

Appellants, Pierrette Duvlaire-Stack and Robert Mortimer, individually 

and as wife and husband, appeal from the trial court's November 15, 2018 

order granting summary judgment in favor of Appellee, Robert A. Wilson.1,2 

We affirm. 

* Retired Senior Judge assigned to the Superior Court. 

1 Although Olivia L. Wilson remains in the caption, the record indicates that 

the parties entered a stipulation on January 9, 2018, dismissing her from the 

case. 

2 The trial court orally granted summary judgment in favor of Mr. Wilson on 

November 7, 2018, but did not enter a corresponding order on the docket until 

November 15, 2018. We have amended the caption accordingly. See 

Pa.R.A.P. 108(b) ("The date of entry of an order in a matter subject to the 
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Although the Honorable Charles B. Burr, II, Senior Judge of the Court of 

Common Pleas of Delaware County entered the November 15, 2018 order 

underlying this appeal, the Honorable Barry C. Dozor of the Court of Common 

Pleas of Delaware County authored the Pa.R.A.P. 1925(a) opinion in this 

matter, due to Judge Burr's retiring from judicial service. Judge Dozor's Rule 

1925(a) opinion sets forth the procedural and factual history of this case as 

follows: 

[Appellants,] on February 6, 2015[,] filed a [c]omplaint in the 

Court of Common Pleas of Philadelphia[] County[,] which alleged 

that[,] on February 7, 2013[,] [Ms.] Duvlaire-Stack was operating 

a motor vehicle on City Avenue, Township of Lower Merlon, 

Montgomery County, Pennsylvania, when [Mr. Wilson], operating 

a motor vehicle in the opposite direction, negligently made a left 

hand turn without yielding the right of way to [Ms. DuvlaireStack]. Count I of the [c]omplaint sought damages for [Ms.] 

Duvlaire-Stack as the operator of the automobile[,] and Count II 

submitted a claim by [Mr.] Mortimer for loss of consortium. On 

May 13, 2015, the Philadelphia Court of Common Pleas sustained 

[Mr. Wilson's] [p]reliminary [o]bjections and transferred 

jurisdiction to this [c]ourt. [Mr. Wilson] answered the complaint 

on July 20, 2015. [Mr. Wilson,] in new matter[,] submitted that 

[Appellants'] claims were barred and/or limited by the Motor 

Vehicle Financial Responsib[ility] Law, (75 Pa.C.S.[] § 1701, et 

seq.[,]) and/or the Pennsylvania Motor Vehicle No -Fault Insurance 

Act, (75 Pa.C.S.[] § 1705). On April 18, 2016, this [c]ourt 

approved [Mr. Wilson's] [p]etition to [t]ransfer the [a]ction to 

[a]rbitration after [Appellants] failed to respond. Next, on 

December 7, 2016, this [c]ourt granted [Mr. Wilson's] [m]otion 

for [p]artial [s]ummary [j]udgment and deemed [Appellants] to 

be subject to the limited tort option (75 Pa.C.S.[] § 1705) for 

Pennsylvania Rules of Civil Procedure shall be the day on which the clerk 

makes the notation in the docket that notice of entry of the order has been 

given as required by Pa.R.C.P. 236(b)."). 

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purposes of the claims to be asserted in this action.[3] The 

[a]rbitration hearing was conducted on October 26, 2017. 

[Appellants] appealed that decision[,] and trial was assigned to 

Senior Judge Burr. 

The docket[] disclose[s] certain discovery motions and [o]rders 

entered ... which ultimately resulted in this case being listed for 

[j]ury trial on a term commencing November 5, 2018. On 

November 5, 2018[,] [Mr. Wilson] filed a [m]otion in [I]imine to 

preclude expert testimony and [the] report of William D. Emper, 

M.D.[] [Mr. Wilson] averred that Dr. Emper first examined [Ms.] 

Duvlaire-Stack on November 14, 2017, which ... was nearly five 

years after the accident. [Mr. Wilson] averred that Dr. Emper's 

report and deposition trial transcript stated that [Ms.] DuvlaireStack informed Dr. Emper that the accident occurred "a couple of 

years prior" to the evaluation and that Dr. Emper did not know 

the date of the accident. [Mr. Wilson] submitted that the proposed 

trial testimony of Dr. Emper failed to establish an unequivocal 

connection between the accident and the alleged shoulder injury 

to Ms. Duvlaire-Stack. [Appellants] answered the motion on 

November 6, 2018[,] and responded that the testimony of Dr. 

Emper unequivocally related Ms. Duvlaire-[Stack]'s injury to the 

motor vehicle accident of February[] 2013. [Appellants] attached 

the November 1, 2018 video deposition transcript of Dr. Emper 

along with a follow-up evaluation report by Tricia M. Beatty, 

D.0.[,] dated October 11, 2017, conducted at the Rothman 

Institute[,] where both Dr. Beatty and Dr. Emper were employed. 

After full review of the motion, answer, deposition transcript and 

argument of counsel, Judge Burr entered an [o]rder ... on 

November 7, 2018, granting the [m]otion in [I]imine and 

precluding the testimony of Dr. Emper. 

3 When choosing car insurance in Pennsylvania, insureds have the option of 

electing 'limited tort' coverage or 'full tort' coverage. See 75 Pa.C.S. § 1705. 

With the 'limited tort' option, an insured "may seek recovery for all medical 

and other out-of-pocket expenses, but not for pain and suffering or other 

nonmonetary damages unless the injuries suffered fall within the definition of 

'serious injury' as set forth in the policy or unless one of several other 

exceptions noted in the policy applies." 75 Pa.C.S. § 1705(a)(1)(A). 

Conversely, with the 'full tort' option, an insured "may seek recovery for all 

medical and other out-of-pocket expenses and may also seek financial 

compensation for pain and suffering and other nonmonetary damages as a 

result of injuries caused by other drivers." 75 Pa.C.S. § 1705(a)(1)(B). 

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Trial Court Opinion (TCO), 1/20/2019, at 1-3 (internal citations omitted). 

Because of the preclusion of Dr. Emper's testimony and Appellants' 

consequential failure to prove causation, the trial court entered an order 

granting summary judgment in favor of Mr. Wilson on November 15, 2018. 

On November 28, 2018, Appellants filed a timely notice of appeal from the 

order granting summary judgment. The trial court ordered Appellants to file 

a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal, and 

they timely complied. 

Presently, Appellants raise a single issue for our review: 

Did the lower court err in precluding the testimony of [Appellants'] 

expert witness and granting summary judgment as a result when 

the expert's testimony was unequivocal and he opined to a 

reasonable degree of medical certainty that [Ms. Duvlaire-Stack's] 

injuries were caused by the motor vehicle accident and she had 

suffered a serious impairment of bodily function to her right 

shoulder in said accident and[,] as a result[,] there was a genuine 

issue of material fact as to whether she had suffered a serious 

injury entitling [Ms. Duvlaire-Stack] to bring an action for pain and 

suffering? 

Appellants' Brief at 5 (emphasis and unnecessary capitalization omitted). 

At the outset, we acknowledge: 

A trial court's decision to grant or deny a motion in limine is 

subject to an evidentiary abuse of discretion standard of review. 

Questions concerning the admissibility of evidence lie within the 

sound discretion of the trial court, and we will not reverse the 

court's decision absent a clear abuse of discretion. An abuse of 

discretion may not be found merely because an appellate court 

might have reached a different conclusion, but requires a manifest 

unreasonableness, or partiality, prejudice, bias, or ill -will, or such 

lack of support so as to be clearly erroneous. In addition, to 

constitute reversible error, an evidentiary ruling must not only be 

erroneous, but also harmful or prejudicial to the complaining 

party. 

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Dibish v. Ameriprise Financial, Inc., 134 A.3d 1079, 1095 (Pa. Super. 

2016) (citation omitted). Further: 

Our scope of review of an order granting summary judgment is 

plenary. We apply the same standard as the trial court, reviewing 

all the evidence of record to determine whether there exists a 

genuine issue of material fact. We view the record in the light 

most favorable to the non-moving party, and all doubts as to the 

existence of a genuine issue of material fact must be resolved 

against the moving party. Only where there is no genuine issue 

as to any material fact and it is clear that the moving party is 

entitled to a judgment as a matter of law will summary judgment 

be entered. 

Motions for summary judgment necessarily and directly implicate 

the plaintiff's proof of the elements of his cause of action. Thus, 

a record that supports summary judgment will either (1) show the 

material facts are undisputed or (2) contain insufficient evidence 

of facts to make out a prima facie cause of action or defense and, 

therefore, there is no issue to be submitted to the fact -finder. 

Upon appellate review, we are not bound by the trial court's 

conclusions of law, but may reach our own conclusions. The 

appellate court may disturb the trial court's order only upon an 

error of law or an abuse of discretion. 

Id. at 1084-85 (citation omitted). 

In precluding Dr. Emper's testimony, the trial court initially observed 

that, "[i]n personal injury proceedings, unequivocal medical testimony is 

necessary to establish a causal connection between an accident and an injury 

in the absence of an obvious relationship." TCO at 3 (citing Albert v. Alter, 

381 A.2d 459, 470 (Pa. Super. 1977)).4 It then described the deposition 

testimony of Dr. Emper as follows: 

4 The trial court noted that Appellants "agree with this standard but assert 

that Dr. Emper's testimony meets that burden[.]" TCO at 3 (citation omitted). 

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The accident in this proceeding[] occurred on February 7, 2013. 

Dr. Emper first evaluated [Ms.] Duvlaire-Stack on November 14, 

2017. The video deposition of Dr. Emper occurred on November 

1, 2018. Dr. Emper initially testified as to his education and 

professional background. Dr. Emper is a board certified 

orthopedic surgeon. Dr. Emper is the Chief of Orthopedic Surgery 

at Bryn Mawr Hospital and teaches at Thomas Jefferson 

University. Dr. Emper initially responded that all opinions that he 

would provide at his deposition would be within a reasonable 

degree of medical certainty and that in his practice, he regularly 

relies on reports of other physician[s] and medical providers in 

making his diagnosis and prognosis. Dr. Emper testified that[,] 

after his initial examination of Ms. Duvlaire-Stack, his treatment 

plan was to perform surgery for a rotator cuff tear. Dr. Emper 

testified that he conducted a second surgery due to stiffness in his 

patient's shoulder in an effort to regain proper motion. Dr. Emper 

stated that his first visit with Ms. Duvlaire-Stack was on November 

14, 2017. The patient informed Dr. Emper at that examination 

that her injury was the result of an automobile accident. 

[Appellants'] counsel then requested Dr. Emper to opine as to 

whether he had formed an opinion as to whether Ms. DuvlaireStack suffered a serious injury as a result of the accident. [Mr. 

Wilson] objected to the question but Dr. Emper responded in the 

affirmative. 

[Mr. Wilson] then proceeded to cross-examination. [Mr. Wilson] 

initially reviewed the file that Dr. Emper had in his possession in 

regards to Ms. Duvlaire-Stack's care. Dr. Emper responded that 

his record included his office notes, his physician assistant's office 

notes and a record of some visits his patient had with other 

physicians in his practice. [Mr. Wilson] then inquired as to 

whether Ms. Duvlaire-Stack told [Dr.] Emper at the first 

evaluation as to whether she had shoulder pain immediately after 

the accident. Dr. Emper responded that Ms. Duvlaire-Stack 

reported that she had pain after the accident, but continued "I 

don't know how immediate it was, at least I don't have it down in 

my note there." [Mr. Wilson] then asked if Ms. Duvlaire-Stack had 

told Dr. Emper that the accident had occurred a couple of years 

before she came to the doctor's office[.] Dr. Emper responded in 

the affirmative. The video transcript then provides[:] 

[Mr. Wilson's counsel]: Do you know when this accident 

happened? 

[Dr. Emper]: I don't have a date down, no. 

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[Mr. Wilson's counsel]: So as we sit here right now, are you 

certain when this occurred? 

[Dr. Emper]: I'm sorry? 

[Mr. Wilson's counsel]: The accident that brings us here, do 

you know when it occurred? 

[Dr. Emper]: No. 

[Mr. Wilson's counsel]: Would knowing the date of an 

accident be important to you in determining whether or not 

an injury is from a certain event that is being claimed? 

[Dr. Emper]: I think it would be relevant, yeah. 

[Mr. Wilson's counsel]: And according to your report, the 

only documents you reviewed again, or in your earlier 

testimony; is the paperwork from anyone she saw here at 

Rothman, correct? 

[Dr. Emper]: Yes. 

On redirect examination, [Appellants'] counsel introduced Dr. 

Beatty's[] October 11, 2017 follow[-]up evaluation report and 

asked Dr. Emper if the report indicated the date of the accident. 

Dr. Emper responded in the affirmative and identified February[] 

2013 as the date of the accident.[5] 

Id. at 3-5 (internal citations omitted). 

After this thorough discussion of Dr. Emper's deposition testimony, the 

trial court explained that "[Appellants'] medical expert could not identify the 

exact date of the accident nor the date when shoulder pain first surfaced after 

the accident." Id. at 5. Further, the trial court discerned that "[t]he medical 

records and testimony of Dr. Emper at his video deposition failed to contain 

or review any of Ms. Duvlaire-Stack's medical history or shoulder 

5 However, when Appellants' counsel asked if Dr. Emper remembered 

reviewing the October 11, 2017 report, Dr. Emper testified, "I may have in 

this instance, but I don't recall reviewing it." N.T., 11/1/2018, at 30. 

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diagnosis/treatment from the February 7, 2013 accident to April[] 2017 when 

she first reported to the Rothman Institute." Id. at 5-6. Consequently, it 

concluded that Dr. Emper's testimony "failed to establish unequivocal 

causation between the accident and the diagnosis." Id. at 5. 

Appellants do not dispute that unequivocal medical testimony is 

necessary to establish causation in this case. Appellants' Brief at 14.6 

However, they argue that "Dr. Emper testified unequivocally that the injury 

was caused by the motor vehicle accident. That he was unsure of the date 

the accident occurred in no way affects the opinion as to causation." Id. 

Appellants contend that "[t]here is absolutely no evidence that there was any 

other precipitating event and no testimony as to whether the date of the 

accident alone was an important factor in determining causation." Id. at 15. 

They assert that, "[w]hile Dr. Emper agreed the date of the accident was 

relevant, he never testified it was the determative [sic] factor in determining 

causation. When reminded of the date of the accident as it appeared in the 

medical records upon which he relied, Dr. Emper rendered unequivocal 

testimony as to causation." Id. 

We reject Appellants' argument. Mr. Wilson persuasively asserts: 

In this matter, Dr. Emper's testimony is vague and unfocused. He 

attempts to relate [Ms. Duvlaire-Stack's] alleged shoulder injury 

and surgery of January 31, 2018[,] to the motor vehicle accident 

of February 7, 2013. However, he has no knowledge of the date 

of the accident or her complaints in the years between the 

6 As the parties agree that this standard applies, we will employ it. 

Consequently, we do not delve into it further. See also footnote 4, supra. 

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accident and when he first saw her. His opinion is contrary to the 

evidence in the record, and as such, Dr. Emper's opinion does not 

have an adequate foundation in fact. 

[Ms. Duvlaire-Stack] filed a lawsuit in this case in 2015, two years 

after the accident. In her [c]omplaint, she makes no mention of 

a shoulder injury. [Ms. Duvlaire-Stack] testified at deposition over 

three years after the accident. When she was asked about her 

injuries from the accident[,] she made no mention [of] her right 

shoulder. Her medical records immediately following the accident 

make no mention of shoulder issues.['] 

Dr. Emper's only knowledge of the motor vehicle accident was 

[Ms. Duvlaire-Stack's] representations that she had been in a 

motor vehicle accident and had shoulder pain "for the last few 

years." Dr. Emper saw no medical records from any provider 

other than those of his colleagues from the Rothman Institute. He 

admitted he did not know when the accident occurred, and he 

conceded that knowing the date of the accident would be relevant 

in forming his opinion. He admitted he did not know when [Ms. 

Duvlaire-Stack] first had shoulder pain following the accident. 

Notably, he stated acute shoulder injuries do not start manifesting 

pain years after an accident.[8] He testified he never saw any 

treatment records from the emergency room or from [Medical 

Rehabilitation Centers of Pennsylvania] where [Ms. DuvlaireStack] underwent therapy in the months following the accident. 

He did not read [Ms. Duvlaire-Stack's] deposition testimony from 

2016[,] and was unaware of her complaints from the accident at 

that time. Dr. Emper admitted all of the above[ -]listed 

information would have been helpful to him in coming to his 

conclusions. 

Id. at 12-13. 

We agree with Mr. Wilson and the trial court that Dr. Emper's testimony 

should be precluded. His medical testimony did not demonstrate, 

Appellants do not specifically address nor counter these claims in their reply 

brief. 

8 Dr. Emper also acknowledged that a shoulder tear can be a "degenerative 

condition[.]" N.T. at 25. 

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unequivocally, a causal connection between the accident and Ms. DuvlaireStack's right shoulder injury. Dr. Emper admitted that his opinion was only 

as good as the information he relied on to form it, that he lacked knowledge 

of various relevant medical records and facts, and that such information would 

have been useful in formulating his opinion. See N.T. at 25-28. 

We also keep in mind that a trial court's decision to grant a motion in 

limine is subject to an abuse of discretion standard of review, and Appellants 

have not convinced us that the trial court abused its discretion here. See 

Dibish, supra. The crux of Appellants' argument is that Dr. Emper did not 

know the exact date of the accident, and that this lapse does not undermine 

his opinion as to causation. However, aside from not knowing when the 

accident occurred, the record shows Dr. Emper had no knowledge of Ms. 

Duvlaire-Stack's condition and treatment between the time of the accident in 

2013 and April of 2017. Appellants do not account for this unawareness, nor 

explain - by discussing relevant legal authority - why it does not affect Dr. 

Emper's ability to provide unequivocal medical testimony as to causation. We 

will not develop arguments on their behalf. See Coulter v. Ramsden, 94 

A.3d 1080, 1088-89 (Pa. Super. 2014) ("[A]rguments which are not 

appropriately developed are waived. Arguments not appropriately developed 

include those where the party has failed to cite any authority in support of a 

contention. This Court will not act as counsel and will not develop arguments 

on behalf of an appellant. ... [M]ere issue spotting without analysis or legal 

citation to support an assertion precludes our appellate review of a matter.") 

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(internal citations, quotation marks, and brackets omitted). Based on our 

review of the record, it appears to us that Dr. Emper's only basis for believing 

that the accident caused Ms. Duvlaire-Stack's shoulder injury was because she 

suggested it did, not because he applied his medical expertise to her medical 

history to establish a causal connection. See Albert, 381 A.2d at 470 

("Pennsylvania case law is clear that in a personal injury case when there is 

no obvious causal relationship between the accident and the injury, 

unequivocal medical testimony is necessary to establish the causal 

connection."). Accordingly, we conclude that the trial court did not abuse its 

discretion in granting Mr. Wilson's motion in limine, and consequently entering 

summary judgment in his favor. 

Order affirmed. 

Judgment Entered. 

J seph D. Seletyn, 

Prothonotary 

Date: 8/12/19