J-A33035-14

2015 PA Super 21

NIAJAH DEEDS, A MINOR BY HER LEGAL 

GUARDIAN, JULIA RENZULLI

IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

UNIVERSITY OF PENNSYLVANIA 

MEDICAL CENTER, HOSPITAL OF THE 

UNIVERSITY OF PENNSYLVANIA AND 

TRUSTEES OF THE UNIVERSITY OF 

PENNSYLVANIA

Appellees No. 755 EDA 2014

Appeal from the Order of January 28, 2014

In the Court of Common Pleas of Philadelphia County

Civil Division at No.: 2558 May Term, 2011

BEFORE: LAZARUS, J., WECHT, J., and STRASSBURGER, J.*

OPINION BY WECHT, J.: FILED JANUARY 30, 2015

In this medical negligence action, Niajah Deeds, a minor by her legal 

guardian, Julia Renzulli, appeals from the jury verdict in favor of the 

University of Pennsylvania Medical Center, Hospital of the University of 

Pennsylvania (“HUP”), and Trustees of the University of Pennsylvania 

(“Trustees”) (collectively, “Appellees”). Following due review, we reverse 

and remand for a new trial.

The trial court set forth the following facts:1

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
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On November 27, 2000, [Deeds’] mother, Tamika Peterson,[2] 

presented to HUP with back and abdominal pain. She was 

diagnosed with “common discomfort of pregnancy” and given 

preterm labor instruction sheets. She again presented on 

January [18], 2001 with complaints of headache, uterine 

contractions, and blurred vision. She reported cocaine and 

cigarette use. Ms. Peterson’s records also indicated a physically 

small placenta and history of sickle cell disease, and physical 

trauma. Ms. Peterson was evaluated and instructed to return for 

a follow up visit on January 20, 2001. She was also given an 

instruction sheet for warning signs of preeclampsia.

Ms. Peterson did not return to HUP until 6:20 p.m. on January 

20, 2001 with complaints of vaginal bleeding. Ms. Peterson 

suffered a placental abruption and gave birth via an emergency 

cesarean section. [Deeds] was born with severe birth defects. 

Trial Court Opinion (“T.C.O.”), 5/21/2014, at 2. Renzulli, Deeds’ legal 

guardian, filed suit on Deeds’ behalf on May 23, 2013, alleging that 

Appellees negligently failed to diagnose Peterson with preeclampsia when 

she was seen on January 18, 2001. The matter proceeded to a jury trial on 

October 25, 2013. At the end of the first day of trial, Deeds informed the 

court that the parties had stipulated that “all the people who provided 

medical treatment to Ms. Peterson were agents of Defendant HUP [and] 

asked the [c]ourt to dismiss the other defendants from the case.” Id. The 

(Footnote Continued) _______________________

1 The Honorable Gary F. DeVito retired after presiding over the jury trial. 

The Honorable Mark I. Bernstein was assigned to write the opinion of the 

trial court.

2 Ms. Peterson is not a party to this case. In 2008, Deeds was removed 

from Ms. Peterson’s home and placed in the foster care system. In October 

of 2008, Julia Renzulli became Deeds’ foster parent, and Deeds’ legal 

guardian in late 2009.
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court denied the motion to dismiss the other defendants, thus permitting 

both HUP and the Trustees to be represented separately by individual 

counsel, each of whom then presented separate arguments and conducted 

separate examinations of witnesses throughout trial. Only HUP, and not the 

Trustees, appeared on the verdict sheet.

On November 12, 2013, the jury returned a verdict in favor of 

Appellees. Deeds timely filed post-trial motions requesting judgment 

notwithstanding the verdict or, alternatively, a new trial. The court denied 

the post-trial motions on January 28, 2014, and Deeds timely appealed. In 

response to the trial court’s order, Deeds filed a statement of errors 

complained of on appeal pursuant to Pa.R.A.P. 1925(b) on March 31, 2014, 

and the trial court entered its Pa.R.A.P. 1925(a) opinion on May 21, 2014.

Deeds presents three questions for our review:

1. In accordance with this Court’s recognition of a per se rule 

entitling the plaintiff to a new trial following a defense verdict 

where counsel for defendant has improperly informed the jury 

that the plaintiff’s injuries are being adequately cared for due to 

the availability of government benefits, should not [Deeds] 

receive a new trial here because [Appellees’] counsel committed 

this very transgression, to the likely prejudice of [Deeds]?

2. Did the trial court err or otherwise abuse its discretion in 

not granting [Deeds] a new trial because the trial court 

improperly allowed two separate attorneys representing two 

separate defendants to question witnesses and present closing 

arguments even after the parties stipulated that this case would 

proceed only against a single defendant?

3. Did the trial court err or otherwise abuse its discretion in 

permitting defendant Dr. Samuel Parry to testify as an expert 

witness beyond the scope of his actual treatment of the birth 

mother, even though defense counsel failed in violation of 
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applicable procedures to identify him as an expert witness and 

disclose his expert opinions during discovery?

Deeds’ Brief at 5-6.

In her first issue, Deeds argues that she is entitled to a new trial 

because the trial court violated the collateral source rule when it “improperly 

allowed [Appellees] to inform the jury that [Deeds’] substantial medical 

needs were all being attended to at little to no cost to [Deeds’] legal 

guardian due to the existence of state and federal education and medical 

benefits programs.” Id. at 16-17. We agree.

Our standard of review regarding a trial court’s denial of a 

motion for a new trial is limited. The power to grant a new trial 

lies inherently with the trial court and we will not reverse its 

decision absent a clear abuse of discretion or an error of law 

which controls the outcome of the case.

Maya v. Johnson & Johnson & McNeil-PPC, Inc. (In re McNeill-PPC, 

Inc.), 97 A.3d 1203, 1224 (Pa. Super. 2014) (citation omitted).

Generally, “the collateral source rule provides that 

payments from a collateral source shall not diminish the 

damages otherwise recoverable from the wrongdoer.” 

Johnson v. Beane, 664 A.2d 96, 100 (Pa. 1995). This 

rule “was intended to avoid precluding a claimant from 

obtaining redress for his or her injury merely because 

coverage for the injury was provided by some collateral 

source, e.g. insurance.” Beechwoods Flying Service, 

Inc. v. Al Hamilton Contracting Corp., 476 A.2d 350, 

352 (Pa. 1984); see also id. at 353 (the rule is “intended 

to prevent a wrongdoer from taking advantage of the 

fortuitous existence of a collateral remedy”); Denardo v. 

Carneval, 444 A.2d 135, 140 (Pa. Super. 1982) 

(“Pennsylvania law is clear; the victim of a tort is entitled 

to the damages caused by the tortfeasor’s negligence 

regardless of compensation the victim receives from other 
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sources”), citing, inter alia, Boudwin v. Yellow Cab Co., 

188 A.2d 259 (Pa. 1963). 

Griesser v. National R.R. Passenger Corp., 761 A.2d 606, 

609 (Pa. Super. 2000).

Further, “when improperly admitted testimony may have 

affected a verdict, the only correct remedy is the grant of a new 

trial.” Id. at 608 (citing Collins v. Cooper, 746 A.2d 615, 620 

(Pa. Super. 2000)).

Nigra v. Walsh, 797 A.2d 353, 356 (Pa. Super. 2002) (citations modified).

In the instant case, Deeds identifies, and the record confirms, several 

instances in which Appellees elicited evidence of government benefits and 

collateral sources of compensation to Deeds. At trial on October 31, 2013, 

while cross-examining Deeds’ expert witness (certified life care planner3

Kathleen Corrigan, RN, CEN, CLCP), counsel for the Trustees elicited the

following:

[Counsel for the Trustees]: . . . It’s not your opinion that Miss 

Renzulli is paying that out-of-pocket cost [for Deeds’ 

medications]? You don’t have that opinion, do you?

[Corrigan]: That she is paying for the medication?

[Counsel for the Trustees]: That they’re being charged the outof-pocket cost?

[Corrigan]: I believe Medicaid is paying for the medication.

____________________________________________

3 A certified life care planner reviews medical records and bills to 

formulate an expert opinion projecting the future medical costs of an 

individual over her lifetime. In the instant case, the parties also stipulated 

that the “necessary and reasonable medical expenses for Naijah Deeds’ past 

medical treatment is $2,227,312.66.” Notes of Testimony (“N.T.”), 

10/31/2013, at 5-6.
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[Counsel for the Trustees]: Okay. And they don’t pay that 

walk up pay out of their pocket price either, do they?

[Counsel for Deeds]: Objection, Your Honor. That’s not the 

legal standard of what the plaintiff is entitled to recover, 

and it’s a total collateral source rule and we have a 

stipulation of what past medical costs are.

[The Court]: I’ll sustain in part, but it’s certainly okay to ask 

how she determined what the costs are.

Notes of Testimony (“N.T.”), 10/31/2013, at 64-65. The court did not issue 

any curative instructions to the jury. Later that same day, counsel for the 

Trustees asked Nurse Corrigan “how the guarantee issue and the individual 

mandate portions of President Obama’s Affordable Care Act will actually 

affect the future care costs in this case[.]” Id. at 81. Counsel for Deeds 

objected, and the trial court sustained the objection, but again, did not issue 

a curative instruction or provide any context for the jury.

During closing argument on November 8, 2013, counsel for the 

Trustees stated:

But here’s what’s critical, Ladies and Gentlemen, about Nurse 

Corrigan. Every item that she claims that Miss Deeds has, Miss 

Deeds already receives, except for a new house. She didn’t tell 

you that Miss Deeds is lacking in a single care need; not one.

She has morning care, day care, afternoon care, overnight care, 

that is already provided in an obviously caring house. She has 

medical care, specialists, top rate schools, communication 

boards. Everything Nurse Corrigan mentioned, Miss Deeds 

already receives.

N.T., 11/8/2013, at 205. The overall effect of these comments was to 

suggest that Deeds’ medical costs were being covered by Medicaid and the 

Affordable Care Act, and that she did not require (and accordingly could not 
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properly seek) any additional compensation. This is a patent violation of the 

collateral source rule. In this case, the violation requires remand for a new 

trial.

Whether remarks by counsel warranted a new trial requires a 

determination based upon an assessment of the circumstances 

under which the statements were made and the precaution 

taken by the court and counsel to prevent such remarks from 

having a prejudicial effect. It is the duty of the trial judge to 

take affirmative steps to attempt to cure harm. However, there 

are certain instances where the comments of counsel are so 

offensive or egregious that no curative instruction can 

adequately obliterate the taint.

Poust v. Hylton, 940 A.2d 380, 386 (Pa. Super. 2007) (citation and 

emphasis omitted).

While the primary focus of the collateral source rule is to avoid 

the preclusion or diminution of the damages otherwise 

recoverable from the wrongdoer based on compensation 

recovered from a collateral source, in some instances, the 

violation of the collateral source rule can affect the jury’s 

deliberation and decision on the issue of liability. As our 

Supreme Court noted in Lobalzo v. Varoli, 185 A.2d 557 (Pa. 

1962), in some cases where there is a violation of the collateral 

source rule,

it is impossible to conjecture what influence the 

erroneously admitted evidence on workmen’s 

compensation and unemployment compensation, as well 

as the misleading charge, had in bringing the jury to the 

conclusion it reached. When an error in a trial is of such 

consequence that, like a dash of ink in a can of milk, it 

cannot be strained out, the only remedy, so that justice 

may not ingest a tainted fare, is a new trial. The 

defendants’ improper emphasis on the subject of an 

assumed double or triple payment may well have caused 

the jury to disbelieve the plaintiff with regard to his 

testimony on the manner in which the accident occurred. 

Id. at 561.
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Walsh, 797 A.2d at 360 (citations modified). 

Instantly, the Trustees’ argument that Deeds’ medical needs are 

currently being met may well have permitted Appellees impermissibly to 

benefit from “the fortuitous existence of a collateral remedy.” Beechwoods 

Flying Serv., Inc., 476 A.2d at 353. Although the trial court sustained 

Deeds’ objections in the first two instances, it offered no curative or limiting 

instructions, nor did it otherwise direct the jury as to how it could or should 

evaluate the objectionable testimony. See Poust, 940 A.2d at 386. The 

teachings of our case law are clear: such suggestions by the Trustees may 

have improperly influenced the jury’s determination. See Walsh, 797 A.2d 

at 260. On this record, we can have little confidence that the verdict as to 

Appellees’ negligence vel non was unaffected by the collateral source 

evidence and argument. Accordingly, the trial court erred in denying 

Deeds’ motion for a new trial. See Maya, 97 A.3d at 1224. The ink was in 

the milk; we cannot now extract it through magic or chemistry.

Inasmuch as we reverse and remand on the first issue, the prospect of 

a new trial requires that we address Deeds’ remaining allegations of error. 

In her second issue, Deeds contends that the trial court erred in permitting 

separate counsel - - one representing the Trustees and one representing 

HUP - - to examine witnesses and present arguments individually to the 

jury, despite the fact that the Trustees were not an active party in the 

litigation and despite the fact that the Trustees did not appear on the verdict 

sheet. Deeds argues that this had the effect of “allowing the lone defendant 
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on the verdict slip to present two separate closing arguments and to 

examine witnesses as though the case involved two separately represented 

defendants.” Deeds’ Brief at 35. The trial court stated:

[Deeds] fails to demonstrate any specific prejudice that resulted 

from the presence of two defense lawyers. Although Judge 

DeVito refused to remove counsel for the Trustees, he restricted 

cumulative questioning and limited counsel for the Trustees to 

questions related to the allegations against the Trustees[’] 

employee, Dr. Ural. The presence of two separate defense 

counsel in and of itself cannot constitute reversible error.17

17 This [c]ourt cannot find anywhere in the record where 

the Trustees were dismissed as a party. If the Trustees 

remained a party, they were entitled to representation. If 

they did not remain in the case, there is still no error since 

[Deeds] points to no particular question by Defense 

Counsel that was improper or duplicative.

T.C.O. at 5 (one footnote and record citation omitted). We disagree with the 

learned trial court. Our review of the trial transcript reveals a deficiency in 

that court’s description of the Trustees’ participation. Under the 

circumstances, we are constrained to conclude that the trial court abused its 

discretion when it permitted counsel for the Trustees to remain.

After the first day of trial, once the jury was excused, Deeds’ counsel 

challenged the propriety of allowing multiple advocates for the defense:

[Counsel for the Trustees]: We have a stipulation that all the 

people who treated Tamika Peterson were the employees—

I’m sorry, were the agents of the Hospital of the University 

of Pennsylvania.

* * *

[Counsel for Deeds]: Okay. But, in other cases that we’ve 

have [sic], so we can just give the [c]ourt a reference, and 
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in answers to interrogatories, they say that the Hospital of 

University of Pennsylvania is an unincorporated 

sub[div]ision of the Trustees of the University of 

Pennsylvania.

Essentially, Your Honor, my belief would be, since 

everybody worked just for the Hospital of University of 

Pennsylvania, there should be one attorney representing 

the defendants in this matter. The defendants shouldn’t 

get two openings, two cross-examinations, two closing[s], 

and maybe even tonight with Doctor Fox, a direct and a 

cross, okay.

I think there should be one attorney for the hospital. They 

all work for the hospital. The hospital is a division of—it 

says an unincorporated division of the Trustees of the 

University of Pennsylvania.

You shouldn’t get two bites at the apple because they 

decide to say, we’re different people.

* * *

I think, Your Honor, there should be one lawyer for the 

defendants in this case. The defendants have agreed in a 

stipulation that we read to the [c]ourt this morning and 

put on the record that they all work for HUP and, at best, 

[Dr.] Ural is an employee of the Trustees.

I don’t think being an employee of the Trustees necessarily 

means he’s their agent. They didn’t stipulate that he was 

an agent, and they want to keep two defendants in for 

some coverage issues that they have with [the Medical 

Care Availability and Reduction of Error Act (“MCARE”)].

N.T., 10/29/2013, at 163-66.

Counsel for HUP challenged the timing of Deeds’ objection, arguing 

that “[i]f this was something that [Deeds] had an issue with, counsel needs 

to bring this up before.” Id. at 168. Counsel for the Trustees maintained 

that Deeds’ concern was raised too late, and argued that the Trustees and 

HUP are “two separate entities” and that the stipulation “was for coverage 
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reasons.” Id. at 169. Counsel for Deeds disagreed, asserting that the issue 

could not have been raised earlier because Dr. Ural’s employment status had 

been left opaque by the fact that the Trustees had not “answer[ed] 

interrogatories or answer[ed] the complaint in any kind of fair way.” Id. at 

171.

The trial court agreed with Appellees, stating:

It should have been raised pre-trial because the jury has already 

heard about who [counsel for the Trustees] represents in his 

opening to the jury.

I think [counsel for HUP] is correct. It’s waived, it has not been 

raised prior to trial.

Id. Thereafter, counsel for the Trustees remained an active participant in 

the trial, and was permitted to examine witnesses and to present closing 

arguments. Nonetheless, when the case was sent back with the jury, only 

HUP appeared on the verdict slip.

Pursuant to Pa.R.C.P. 230, a plaintiff may declare a voluntary nonsuit 

to terminate litigation against a defendant once trial has commenced.4 In 

this case, however, counsel for Deeds did not declare a voluntary nonsuit 

against the Trustees. Nor did Deeds identify any other procedural 

____________________________________________

4

“Pa.R.C.P. 230 declares a voluntary nonsuit to be the exclusive 

method of voluntary termination by a plaintiff during trial; that it may not be 

suffered without leave of court after plaintiff has rested his case; and that it 

is not permissible at all after the close of all of the evidence.” Deigan v. 

Deigan, 232 A.2d 227, 229 (Pa. Super. 1967). 
J-A33035-14

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mechanism to remove the Trustees prior to submission of the verdict slip, 

which only named HUP. The trial court’s conclusion that the Trustees were 

not dismissed as a party is correct. See T.C.O. at 5.

Pursuant to Pa.R.C.P. 223(2), the trial court may “[l]imit[] the number 

of attorneys representing the same party or the same group of parties, who 

may actively participate in the trial of the case or may examine or crossexamine a witness or witnesses[.]” Pa.R.C.P. 223(2).

Under Rule 223 of the Pennsylvania Rules of Civil Procedure, 

local courts are empowered to make and enforce rules regulating 

the number and length of addresses to the jury. . . . Further, it 

has long been established that the addresses of counsel to the 

jury are especially subject to the regulatory powers of the trial 

judge. So long as no clear abuse of discretion exists or rights of 

due process are violated, an appellate court should not interfere.

Burish v. Digon, 206 A.2d 497, 499 (Pa. 1965).

In Burish, which involved cross claims for comparative negligence in a 

car accident, our Supreme Court found no error or abuse of discretion in the 

trial court’s decision to limit Burish’s counsel to one closing argument despite 

the fact that Burish was separately represented by counsel as an individual 

and by counsel for his insurance company because:

The cross actions consolidated for trial arose out of the same 

facts and involved identical parties. Burish received the same 

treatment as his opposing litigant. None gained special 

advantage over the other. Burish was represented by [ ] both 

counsel as an individual, even though one may have been 

present to protect the interests of a company carrying liability 

insurance on his automobile. The fact that his counsel could not 

agree between themselves as to what the closing argument 

should include should not vitiate Digon’s fairly won verdict. It 

must be further noted that if the second counsel were permitted 
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to argue, it was his declared purpose to maintain that both 

drivers were guilty of negligence and, therefore, neither should 

recover.

Burish, 206 A.2d at 499. 

At the trial of the instant case, the Trustees argued that they remained 

an essential party because of coverage questions under MCARE. N.T., 

10/29/2013, at 163-66, 169. Under similar circumstances in Burish, supra, 

our Supreme Court determined that the trial court properly limited the two 

attorneys with similar interests (one of which was financial coverage), to a 

single closing argument. Burish, 206 A.2d at 499. Here, the facts and 

claims pleaded against HUP and the Trustees were identical. Moreover, HUP 

and the Trustees had asserted no cross-claims against one another. HUP 

and the Trustees shared expert witnesses as well. They were members of 

“the same group of parties,” and the matter of coverage alone did not

require counsel for the Trustees’ active participation. See Pa.R.C.P. 223(2); 

Burish, 206 A.2d at 499. There were in fact mechanisms for removing the 

Trustees once trial commenced. Contrary to the trial court’s assertion that 

“[i]f the Trustees remained a party, they were entitled to representation,” 

T.C.O. at 5, the trial court had discretion to limit trial participation by 

counsel for the Trustees.

We are unable to agree with the trial court’s assertion that Deeds “fails 

to demonstrate any specific prejudice that resulted from the presence of two 

defense lawyers” because the court “limited counsel for the Trustees to 

questions related to the allegations against the Trustees[’] employee, Dr. 
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Ural” and “[Deeds] points to no particular question by Defense Counsel that 

was improper or duplicative”. T.C.O. at 5. As discussed above, counsel for 

the Trustees transgressed the collateral source rule on at least three 

occasions, transgressions which form the basis for the award of a new trial in 

this case. See Walsh, 797 A.2d at 360. The Trustees’ questions, which 

involved improper inquiries into Deeds’ existing financial coverage for her 

medical needs, went well beyond the scope of Deeds’ allegations of 

negligence against Dr. Ural. See N.T., 10/31/2013, at 64-65, 81. Hence it 

cannot be maintained that the active and duplicative participation of counsel 

for the Trustees caused no prejudice to Deeds. Cf. T.C.O. at 5. The trial 

court abused its discretion by permitting counsel for the Trustees and 

counsel for HUP effectively to “tag team” Deeds at trial while representing 

the same interest. See Burish, 206 A.2d at 499.

Finally, inasmuch as we order a new trial, we must address Deeds’ 

contention that the trial court erred and abused its discretion by “permit[ing] 

Dr. Samuel Parry, the attending physician for [Deeds’] c-section delivery [on 

January 20, 2001], to offer expert opinion testimony about the care the birth 

mother received from others two days earlier on the mother’s previous visit 

to HUP’s [Perinatal Evaluation Center (‘PEC’)].” Deeds’ Brief at 40. 

Specifically, Appellees “did not identify Dr. Parry as an expert witness, nor 

was he identified in [Appellees’] answers to interrogatories as a treating 

physician who would be providing opinion testimony” but nonetheless “asked 

his opinion concerning whether [Deeds’] mother had preeclampsia on 
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January 18th, the equivalent of asking him as to whether or not [Appellees] 

violated the standard of care by not diagnosing [Deeds’] mother with 

preeclampsia on January 18th.” Id. at 41-42. After careful review, we 

disagree.

Our standard of review for evidentiary rulings is narrow:

When we review a trial court’s ruling on admission of evidence, 

we must acknowledge that decisions on admissibility are within 

the sound discretion of the trial court and will not be overturned 

absent an abuse of discretion or misapplication of law. In 

addition, for a ruling on evidence to constitute reversible error, it 

must have been harmful or prejudicial to the complaining party.

The admissibility of expert testimony is soundly committed to 

the discretion of the trial court, and the trial court’s decision will 

not be overruled absent a clear abuse of discretion.

Polett v. Public Communs., Inc., 83 A.3d 205, 218-19 (Pa. Super. 2013) 

(citations omitted).

“[T]he division [sic]whether testimony constitutes fact or opinion may 

be difficult, for there is no litmus test for fact versus opinion.” Bucchianeri 

v. Equitable Gas Co., 491 A.2d 835, 839 (Pa. Super. 1985) (internal 

quotation marks omitted). “[T]echnical expertise does not ipso facto convert 

a fact witness, who might explain how data was gathered, into an expert 

witness, who renders an opinion based on the data.” Branham v. Rohm & 

Haas Co., 19 A.3d 1094, 1110 (Pa. Super. 2011).

A pre-trial report by a non-party expert serves to inform the 

opposing side of the identity of a party’s experts and the 

conclusions of the experts in order to prevent unfair surprise and 

prejudice at trial. However, a physician who is also a defendant 
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may testify as a fact witness in his own behalf without the prior 

filing of an expert’s report.

Havasy v. Resnick, 609 A.2d 1326, 1333 (Pa. Super. 1992). “Fact 

testimony may include opinion or inferences so long as those opinions or 

inferences are rationally based on the witness’s perceptions and helpful to a 

clear understanding of his or her testimony.” Brady by Brady v. Ballay, 

704 A.2d 1076, 1082 (Pa. Super. 1997).

In the instant case, Dr. Parry treated Deeds’ mother, Tamika Peterson, 

on November 27, 2000, when she initially presented to HUP with back pain. 

Dr. Parry did not see Peterson on January 18, 2001, when she complained of 

headache, uterine contractions, and blurred vision, but was sent home. 

However, Dr. Parry was the attending physician on January 20, 2001, when 

Peterson suffered a placental abruption and Deeds was delivered by 

emergency caesarian section. Prior to Dr. Parry’s testimony, Deeds 

objected, arguing:

Doctor Parry . . . did not see the patient on [January] 18th, did 

not participate in the care on the 18th, and Doctor Parry will start 

talking about the care that took place on the 18th is not needed 

[sic]. 

I’ve asked for an offer of proof and counsel told me well, he’s 

going to talk about how the PEC worked and how the PEC was 

set up and how people were assigned to the PEC. We have 

already heard from every defense witness with the exception of 

Doctor Schwartz, who just left, about the PEC, how it was 

working, how it was set up.

So, this is nothing but repetitive testimony by someone who is 

not there during any of the critical events that occurred.

* * *
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So, I have to wonder, Your Honor, what he is going to testify to. 

If he is going to testify about the care that he rendered on the 

20th, and the 21st, and the discharge summary that he wrote, 

then I think that he is a treating physician.

N.T., 11/6/2013 (Morning Session), at 113-15. After hearing from 

Appellees, the court held that Dr. Parry would be permitted to “testify about 

his contacts with Tamika Peterson,” id. at 127, and to the extent that Dr. 

Parry relied upon notes in Peterson’s file from the January 18, 2001 visit in 

order to diagnose the placental abruption on January 20, he would be 

permitted to so testify. Id. at 134. Thereafter, Dr. Parry was sworn in 

without being qualified as an expert witness. N.T., 11/6/2013 (Afternoon 

Session), at 7. Dr. Parry testified that he diagnosed Peterson with a 

placental abruption on January 20, and that after the emergency caesarian 

section, her blood pressure remained high. Id. at 60-61. He then explained 

as follows:

So, otherwise, I thought Ms. Peterson was doing well. So I 

wrote routine post-op care. And now we have to from this 

point on make a decision why we had these elevated 

pressures because if I do think it’s pre-eclampsia, preeclampsia after delivery, before delivering any time can 

lead to major medical problems for the mother. It can 

affect the liver, it can affect the kidneys. It can cause a 

woman to have a seizure. It can cause stroke.

One of the major things it does is causes seizure. Preeclampsia then becoming eclampsia. When a woman has 

a seizure and if I think a woman has pre-eclampsia, I have 

to give her medicine to prevent a seizure which is 

magnesium sulfate. They hate that. It makes them feel 

weak like they have the flu. It’s not a nice drug to give a 

woman. I don’t give it to any woman that I have any 

suspicion of pre-eclampsia. We have to know for sure, 

does she have it or not. If she has, she has to get 
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magnesium sulfate for the next day to prevent her from 

having a seizure.

[Counsel for the Trustees]: Doctor, if a patient truly has preeclampsia and doesn’t get magnesium sulfate, what could 

happen?

[Parry]: She could have a seizure.

[Counsel for the Trustees]: Does any of that happen?

[Parry]: No.

Id. at 62-63. Dr. Parry described the monitoring and lab work performed to 

satisfy his diagnosis that Ms. Peterson did not have preeclampsia, and stated 

that he successfully treated her pregnancy-induced hypertension with 

magnesium sulfate. Id. at 63-66. Thereafter, counsel for the Trustees 

asked:

There is a distinction between—there is a mild preeclampsia and a severe pre-eclampsia, right, Doctor? Did 

she have either mild pre-eclampsia or severe preeclampsia on January 20?

[Parry]: No.

[Counsel for the Trustees]: Did she have either mild preeclampsia or severe pre-eclampsia on January 18?

[Parry]: No.

[Counsel for Deeds]: Objection.

[Counsel for the Trustees]: We went through the notes that he 

reviewed from the two days before.

The Court: Overruled.

Id. at 66.

Deeds argues that Dr. Parry’s testimony that Deeds’ mother did not 

have preeclampsia on January 18, 2001 expressed an expert opinion as to 
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standard of care. However, Dr. Parry’s testimony that Peterson did not have 

preeclampsia on January 18 was based on his treatment and observation of 

Peterson, and was “helpful to a clear understanding of his . . . testimony.” 

Brady, 704 A.2d at 1082. Although Dr. Parry discussed the basis for the 

course of Peterson’s medical treatment and provided an explanation as to

how she received care at the PEC based on his experience as an attending 

physician at the PEC, he did not render any opinion as to whether the PEC 

violated a standard of care on January 18. Therefore, the trial court did not 

err in admitting his testimony as a fact witness. See Polett, 83 A.3d at 

218-19; see also Branham, 19 A.3d at 1110; Bucchianeri, 491 A.2d at 

839. Hence, to the extent that this issue might arise upon retrial, we 

observe that Deeds’ third issue would not merit relief on the present appeal.5

Having concluded that Deeds was irreparably prejudiced by Appellees’ 

violations of the collateral source rule and “tag team” representation at trial, 

we reverse the judgment in favor of Appellees, and we remand for a new 

trial.

Reversed and remanded for new trial. Jurisdiction relinquished.

Judge Lazarus joins the opinion.

Judge Strassburger files a concurring and dissenting opinion.

____________________________________________

5 Necessarily, we do not opine with respect to the permissibility at retrial 

of questions or answers different than those challenged on this appeal.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/30/2015