J-A24027-23

JOHN FOX, INDIVIDUALLY AND AS 

ADMINISTRATOR OF THE ESTATE OF 

DIANE FOX, DECEASED 

Appellant

v.

MATTHEW J. DOWNEY, M.D., 

NORTHEASTERN 

GASTROENTEROLOGY ASSOCIATES, 

P.C. WAYNE MEMORIAL HOSPITAL 

AND WAYNE MEMORIAL HEALTH 

SYSTEM, INC.

:

:

:

:

:

:

:

:

:

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 3066 EDA 2022

Appeal from the Order Entered November 4, 2022

In the Court of Common Pleas of Wayne County Civil Division at No(s): 

2017-00493

BEFORE: STABILE, J., DUBOW, J., and SULLIVAN, J.

MEMORANDUM BY DUBOW, J.: FILED FEBRUARY 01, 2024

Appellant, John Fox, Individually and as Administrator of the Estate of 

Diane Fox, Deceased, appeals from the November 4, 2022 Order, entered in 

the Wayne County Court of Common Pleas, granting the Motion for Summary 

Judgment filed by Appellees, Matthew J. Downey, M.D., Northeastern 

Gastroenterology Associates, P.C., Wayne Memorial Hospital, and Wayne 

Memorial Health System Inc., and dismissing Appellant’s complaint with 

prejudice in this medical and corporate negligence action. After careful 

review, we affirm.
J-A24027-23

- 2 -

The relevant facts and procedural history are as follows. On May 9, 

2018, Appellant filed a ten-count Amended Complaint against Appellees 

asserting medical negligence and related claims arising from Dr. Downey’s 

alleged negligence in performing an endoscopy on Appellant’s wife.

1, 2

 

Pursuant to a case management order, the court initially scheduled trial 

in this matter for November 2019, and ordered that Appellant produce his 

expert reports by July 1, 2019. However, the court subsequently continued 

the trial date five times—primarily, but not exclusively—at Appellant’s request, 

before finally scheduling trial for November 14, 2022.3 During this period, the 

trial court also issued numerous case management orders, the last of which, 

entered on October 28, 2021, set November 15, 2021, as the deadline for 

Appellant to file expert reports.

____________________________________________

1 Specifically, Appellant raised one claim of negligence against Dr. Downey, 

claims of negligence, vicarious liability, and ostensible agency against 

Northeastern Gastroenterology Associates, P.C., Wayne Memorial Hospital, 

and Wayne Memorial Health System, Inc., one claim of corporate negligence 

against Wayne Memorial Hospital, and wrongful death and survival claims 

against all defendants. On November 1, 2022, the trial court approved a 

stipulation of the parties dismissing Wayne Memorial Hospital and Wayne 

Memorial Health System, Inc., as defendants.

2 Appellant claimed that Dr. Downey, who treated Appellant’s wife from 

October 22, 2015, to October 25, 2015, performed the endoscopy procedure 

incorrectly, which led to various complications, including infection, sepsis, and 

ultimately Appellant’s wife’s death on September 5, 2016. 

3 Appellant requested and received three continuances, the parties jointly 

requested one continuance, and the court once rescheduled trial once due to 

the COVID-19 pandemic. 
J-A24027-23

- 3 -

On October 14, 2022, Appellees filed a motion for summary judgment

in which they asserted that, to date, Appellant had “not produced any expert 

reports to support any claims on any theories of liability against any 

[Appellees].” Motion, 10/14/22, at ¶ 9. Appellees argued that, because

Pennsylvania law requires a medical malpractice plaintiff seeking to establish 

negligence to present expert medical testimony to demonstrate that a 

defendant departed from the generally accepted standards of medical practice

and that this departure caused the plaintiff’s injury, Appellant’s failure to 

produce any expert reports entitles Appellees to judgment as a matter of law. 

Appellees also argued that, given the proximity to trial, they would “sustain 

severe prejudice by late expert submissions” because “the late hour of the 

potential reports do not allow [them] sufficient notice or time for trial 

preparation.” Id. at ¶¶ 15-16. Moreover, they asserted that any effort by 

Appellant to produce an expert report at this late date would violate the 

Pennsylvania Rules of Civil Procedure and the trial court’s October 28, 2021 

scheduling order.

4

On October 17, 2022, eleven months after his expert report was due,

Appellant identified his expert, Dr. John Y. Nasr, for the first time and 

produced an expert report authored by him. 

____________________________________________

4 Appellee acknowledged that, once the court had continued the trial date to 

November 14, 2022, the parties informally agreed to extend the deadline for 

Appellant to produce expert reports. The record does not reflect that this 

“informal agreement” resulted in an order of court extending the deadline.
J-A24027-23

- 4 -

The following day, Appellant filed a motion to continue the November 

14, 2022 trial date due to the “unforeseen and unanticipated inability to obtain 

a timely expert medical report . . . despite good faith efforts to do so.” Motion, 

11/14/22, at ¶ 4. In particular, Appellant’s “gastrointestinal surgeon[, Dr. 

Nasr,] has not been able to timely respond to telephonic and email requests 

for follow up communication and timely produce an expert liability report.” 

Id. The trial court denied the motion to continue.

On October 31, 2022, Appellant filed an answer to Appellees’ motion for 

summary judgment. Appellant denied that the trial court’s October 28, 2021 

scheduling order required him to produce expert reports by November 15, 

2021, because the parties had informally agreed to extend the deadline, albeit 

to an unspecified date in the future. Appellant, nevertheless, admitted that 

he did not produce an expert report until October 17, 2022, just under one 

month before the commencement of trial, due to “unforeseen and 

unpredictable reasons set forth in [Appellant’s] Motion for Continuance.” 

Answer, 10/31/22, at ¶ 7. In addition, Appellant acknowledged that he would 

be seeking to replace Dr. Nasr as his expert prior to trial and, therefore, would 

“benefit from a continuance of the trial to replace the expert.” Id. at ¶ 10. 

Appellant argued that, because he produced Dr. Nasr’s expert report providing 

expert medical testimony regarding the standard of care and causation, he 

had presented a prima facie case of medical malpractice. Id. at ¶¶ 13-14.

Following a hearing, on November 4, 2022, the trial court granted 

Appellees’ motion for summary judgment and dismissed the case with 
J-A24027-23

- 5 -

prejudice pursuant to Pa.R.Civ.P. 1035.2(2).

5

 Relying on Pa.R.Civ.P. 

4003.5(b)6 and Kurian ex rel. Kurian v. Anisman, 851 A.2d 152 (Pa. Super. 

2004), the trial court determined that, although Appellant had not acted in 

bad faith, allowing Appellant’s expert report at such a late stage would 

prejudice Appellees. The court observed that, as in Kurian, Appellant had 

only identified Dr. Nasr as his expert in response to Appellees’ motion for 

summary judgment, and, even after doing so, stated at the hearing on the 

motion that he intended to use an expert other than Dr. Nasr to testify at trial. 

The court further observed that Appellant produced Dr. Nasr’s report 

approximately 11 months late and less than one month before trial. The court 

also found that any additional delay would disrupt the efficient and just 

administration of justice. The court, therefore, exercised its discretion to 

exclude Appellant’s expert report and concluded that, without it, Appellant had 

failed to establish a prima facie case against Appellees. 

This timely appeal followed. Appellant complied with the trial court’s 

order to file a Pa.R.A.P. 1925(b) statement. In lieu of filing a Rule 1925(a) 

____________________________________________

5 Rule 1035.2(2) permits a party to seek judgment as a matter of law where

an adverse party “has failed to produce evidence of facts essential to the cause 

of action . . . which[,] in a jury trial would require the issues to be submitted 

to a jury.” Pa.R.Civ.P. 1035.2(2). 

6 Rule 4003.5(b) provides that, “[an] expert whose identity is not disclosed 

[through interrogatories] shall not be permitted to testify on behalf of the 

defaulting party at the trial of the action. However, if the failure to disclose 

the identity of the witness is the result of extenuating circumstances beyond 

the control of the defaulting party, the court may grant a continuance or other 

appropriate relief.” Pa.R.Civ.P. 4003.5(b).
J-A24027-23

- 6 -

opinion, the trial court directed this Court to its November 4, 2022 

Memorandum and Opinion for an explanation of the reasons underlying its 

decision.

Appellant raises the following four questions for our review:

1. Should this [C]ourt overrule Kurian ex rel. Kurian v. 

Anisman, 851 A.2d 152, 159 (Pa. Super. 2004), the case 

relied upon by the trial court to sua sponte exclude Appellant’s 

expert report pursuant to Pa.R.Civ.P. 4003.5(b)?

2. Did the trial court err when it applied Kurian ex rel. Kurian 

v. Anisman, 851 A.2d 152, 159 (Pa. Super. 2004)[,] here, 

where this case is distinguishable from Kurian because there 

is no prejudice readily identifiable on the record?

3. Did the trial court commit legal error when it applied 

Pa.R.Civ.P. 4003.5(b) here without conducting an evidentiary 

hearing to gather facts necessary to assess the prejudice to 

each party, as required under Rule 4003.5(b)?

4. Did the trial court abuse its discretion when it did not grant a 

continuance, as contemplated by Pa.R.Civ.P. 4003.5(b), given 

the exceptional circumstances present here and where such 

relief would have avoided prejudice to all parties?

Appellant’s Brief at 8-9.

A.

An order granting summary judgment will be reversed if the trial court 

committed an error of law or clearly abused its discretion. Malanchuk v. 

Sivchuk, 148 A.3d 860, 865 (Pa. Super. 2016). Where, as here, the trial 

court’s decision regarding a motion for summary judgment involves a finding 

based upon its procedural history, we evaluate that order under an abuse of 

discretion standard. Cooper v. Schoffstall, 905 A.2d 482, 488 (Pa. 2006).
J-A24027-23

- 7 -

B.

In his first issue, Appellant urges this Court to overrule Kurian, alleging 

that Kurian improperly interpreted the Pennsylvania Supreme Court’s 

decision in Gerrow v. John Royle & Sons, 813 A.2d 778 (Pa. 2002) (OAJC) 

and conflicts with Rule 1035.3(b).

7

 Appellant’s Brief at 25-39. Appellant 

argues that the Court in Kurian, “misunderst[ood ] the interplay between the 

relevant [R]ules” of Civil Procedure and its holding is “fundamentally flawed 

because . . . a sanction pursuant to Rule 4003.5(b) requires an assessment of 

prejudice, which cannot be accomplished when a trial court raises the issue 

sua sponte in a motion for summary judgment.” Id. at 33-34. Appellant 

characterizes Kurian’s reasoning as “weak” and its holding “inconsistent with 

our Rules of Civil Procedure because a court, at the summary judgment stage, 

is not in a position to make the necessary findings of fact required to impose 

a Rule 4003.5(b) sanction.” Id. at 38.

It is well-settled that “except in circumstances where intervening 

authority by our Supreme Court calls into question a previous decision of this 

Court,” Commonwealth v. Pepe, 897 A.2d 463, 465 (Pa. Super. 2006), a 

three-judge “panel [of the Superior Court] is bound by existing precedent and, 

therefore, lacks the authority to overturn another panel decision.” 

Commonwealth v. May, 271 A.3d 475, 482 (Pa. Super. 2022), appeal 

____________________________________________

7 Rule 1035.3(b) permits an adverse party to “supplement the record or set 

forth reasons why the party cannot present evidence essential to justify 

opposition to [a] motion [for summary judgment.” Pa.R.Civ.P. 1035.3(b).
J-A24027-23

- 8 -

denied, 286 A.3d 214 (Pa. 2022); see also Commonwealth v. Beck, 78 

A.3d 656, 659 (Pa. Super. 2013) (holding that a three-judge panel of this 

Court “is not empowered to overrule another panel of the Superior Court”). 

Cf. Commonwealth v. Rosario, 294 A.3d 338, 354 (Pa. 2023) (“An en banc

panel of an intermediate court is authorized to overrule a three-judge panel 

decision of the same court.”) (citation omitted). 

Because our Supreme Court has not issued any decisions calling into 

question this Court’s holding in Kurian, we are bound by Kurian and decline 

Appellant’s invitation to overturn it.8

C.

In his second and third issues, Appellant avers that the court erred in 

applying the holding in Kurian without holding an evidentiary hearing to 

determine whether Appellant’s late-produced expert report prejudiced any 

party. Appellant’s Brief at 39-45. Appellant attempts to distinguish this case 

from Kurian by emphasizing that the plaintiff there “brazenly violated multiple 

orders and [] the informal extension of the expert deadline.” Id. at 40. 

Appellant argues that because the plaintiff in Kurian produced the expert 

witness report on the day the parties were supposed to go to trial, the court 

could readily discern on the face of the record the prejudice caused. Id. 

Appellant, therefore, concludes that “Kurian’s holding that a trial court can 

____________________________________________

8 Moreover, as discussed infra, in Monroe v. CBH20, LP, 286 A.3d 785, 804-

860 (Pa. Super. 2022) (en banc), an en banc panel of this Court recently 

considered issues similar to those presented in Kurian and approved that 

panel’s analysis and reasoning. 
J-A24027-23

- 9 -

sua sponte raise Rule 4003.5(b) as a sanction to preclude an otherwise Rule

1035.3-compliant expert report is limited to cases where prejudice is apparent 

on the face of the record.” Id. We disagree.

This Court has held that, “when a party makes a timely response to a 

summary judgment motion and attempts to supplement the record with 

otherwise untimely expert reports, the court may, on its own motion, 

determine whether this is allowed under Rule 4003.5(b).” Kurian, 851 A.2d 

at 159. In other words, when considering a motion for summary judgment, 

the court must determine whether the movant would be prejudiced by the 

inclusion of the supplemental expert report. Id. at 159, 162.

In Kurian, this Court found that the appellees would be prejudiced by 

the late inclusion of the expert report since the appellants had violated 

numerous court-ordered deadlines and offered the report on the day of trial. 

Id. at 162. We reasoned that allowing the report at such a late stage caused 

“unfair surprise and prejudice,” since appellees would be left with no time to 

evaluate and respond to the expert testimony. Id. We observed that such 

prejudice could be neutralized if the court delayed trial; however, we 

concluded that further delaying trial would “disrupt the efficient and just 

administration of justice and would send a blatant message that case 

management deadlines are meaningless.” Id. Hence, the Court determined

that the trial court did not err in precluding the expert reports and granting 

summary judgment.
J-A24027-23

- 10 -

Recently, in Monroe v. CBH20, LP, 286 A.3d 785, 804-860 (Pa. Super. 

2022) (en banc), this Court considered Kurian and its discussion of the 

interplay between Rules 4003.5(b) and 1035.5(b). Id. at 803-806. Notably, 

this Court emphasized that, pursuant to Kurian, the trial court may preclude 

an otherwise untimely expert report produced as part of a timely response to 

a motion for summary judgment where the “complaining party shows that he 

has been prejudiced from properly preparing his case for trial as a result of 

the dilatory disclosure.” Id. at 805 (citing Kurian, 851 A.2d at 162). 

Here, Appellant denies that he “continually” violated court orders and 

asserts that there is no evidence on the record that his conduct prejudiced 

Appellees. Appellant’s Brief at 40. He contends that the trial court erred in 

“apparently conclud[ing] that prejudice existed simply because of the time 

that elapsed from the court’s-imposed deadline and the trial date.” Id. at 41. 

Appellant further summarily posits that because Appellees had agreed to an 

informal extension of the deadline for producing the expert report, they could 

not be prejudiced by that elapsed time. Id. at 42. He also baldly asserts that 

the trial court inappropriately considered his acknowledgement that he intends 

to replace Dr. Nasr with a new expert when determining that his conduct had 

prejudiced Appellees, arguing that “[w]hat trial counsel intends to do in the 

future—and whether this court allows him to do so—is a determination for 

another day.” Id.

Appellant’s arguments and our review of the record fail to convince us 

that the trial court abused its discretion by excluding his expert report without 
J-A24027-23

- 11 -

holding an evidentiary hearing. The record clearly indicates that Appellant

violated the trial court’s scheduling order when he did not produce any expert 

reports by the deadline for doing so, and, instead, waited an additional 11 

months before providing Appellees with Dr. Nasr’s report. In addition, the 

purported agreement between the parties to extend the deadline for producing 

the expert report is of no moment as the parties did not reduce it to writing 

as required by Pa.R.Civ.P. 201. See Pa.R.Civ.P. 201 (“Agreements of 

attorneys relating to the business of the court shall be in writing, except such 

agreements [made at the bar of the court] as are noted by the prothonotary 

upon the minutes or by the stenographer on the stenographer’s notes.”). 

Moreover, given that Appellant’s counsel indicated less than one month 

before trial was scheduled to commence that he intended to replace Dr. Nasr 

with a new, unidentified expert, who would presumably author a new expert 

report, Dr. Nasr’s report was of no value to Appellees in their preparation of a 

defense against Appellant’s medical malpractice claims. See Miller v. Brass 

Rail Tavern, Inc., 664 A.2d 525, 530 n.3 (Pa. 1995) ([T]he purpose of 

Pa.R.C[iv].P. 4003.5 is to prevent surprise.”). Therefore, it is evident from 

the record that Appellant’s conduct prevented Appellees from preparing for 

trial to their detriment.

9

____________________________________________

9 We observe that Appellant has not cited to any case law in support of his 

assertion that Appellees could not be prejudiced by Appellant’s 11-month 

delay in providing them with an expert report simply because they informally 

agreed to an extension of the deadline for Appellant to provide the report. 

(Footnote Continued Next Page)
J-A24027-23

- 12 -

Appellant also complains that the trial court erred by not holding a 

hearing to develop the factual record so that it could properly consider the

factors set forth in Feingold v. Southeastern Pa. Transp. Auth., 517 A.2d 

1270 (Pa. 1986), before imposing a Rule 4003.5(b) sanction.10 Appellant’s 

Brief at 44. He essentially argues that the trial court failed to consider the 

prejudice to him before excluding Dr. Nasr’s report.

We first observe that Feingold did not impose on the trial court a

requirement to hold an evidentiary hearing prior to determining whether to 

exclude a late-filed expert report as Appellant implies. Instead as the 

Feingold Court noted, Rule 4003.5(b) merely requires that the court “balance 

the facts and circumstances of each case to determine the prejudice to each 

party.” Feingold, 517 A.2d at 1273. Moreover, Rule 4003.5(b) “give[s] the 

trial court discretion to preclude expert trial testimony at any pretrial date[.]” 

Kurian, 851 A.2d at 161 (emphasis omitted).

____________________________________________

Further, we reject the premise of his argument. As noted above, prejudice 

arises not because of the delay per se but because of the consequence of the 

delay, i.e., the lack of time to review the report and prepare an appropriate 

defense in response to it.

10 The Feingold factors are: 

(1) the prejudice or surprise in fact of the party against whom the 

excluded witnesses would have testified, (2) the ability of that 

party to cure the prejudice, (3) the extent to which waiver of the 

rule against calling unlisted witnesses would disrupt the orderly 

and efficient trial of the case or of other cases in the court, and 

(4) bad faith [or] willfulness in failing to comply with the court’s 

order.

Feingold, 517 A.2d at 1272-73 (citation omitted).
J-A24027-23

- 13 -

As noted above, Appellant produced an expert report 11 months after 

the deadline to do so and more than three years after he filed the complaint 

initiating this matter. Critically, however, Appellant subsequently conceded 

at the November 2, 2022 hearing on Appellees’ motion for summary judgment 

that he would not be using Dr. Nasr as an expert witness at trial. Thus, less 

than two weeks before trial, Appellant still had not identified his expert witness 

and had not produced an expert report upon which he intended to rely in 

support of his medical malpractice claims. In light of these facts, as well as 

the court’s acknowledgement that it had already continued this matter five 

times, its concern that “any additional delay in trial would disrupt the efficient 

and just administration of justice[,]” Trial Ct. Op., at 4, and its prerogative to 

enforce its own case management orders, we conclude that the trial court

properly exercised its discretion as provided in Rule 4003.5(b). Appellant is, 

thus, not entitled to relief on this claim.

D.

In his final issue, Appellant asserts that the trial court abused its 

discretion in not continuing this matter as permitted by Rule 4003.5(b). 

Appellant’s Brief at 45-48. Appellant contends that his difficulty in obtaining 

Dr. Nasr’s report “fits comfortably within Rule 4003.5(b)’s exception for 

extenuating circumstances,” especially because, Appellant’s conduct was not 

willful or in bad faith. Id. at 45-46. Appellant argues that any prejudice 

Appellees suffered as a result of his conduct was not significant enough to 

outweigh the prejudice he suffered as a result of the dismissal of his case. Id.
J-A24027-23

- 14 -

at 46. He claims the following facts support this argument: (1) Appellees 

agreed informally to extend the expert deadline; (2) Appellees knew Appellant 

had obtained an expert and were just waiting for him to write the expert 

report; (3) Appellees should not have been surprised by the contents of the 

expert report because it “hues closely to the Complaint”; and (4) Appellees 

never sought any discovery sanctions to preclude Appellant’s expert from 

testifying. Id. at 47-48.

We reiterate that, pursuant to Rule 4003.5(b), if a party does not 

disclose the identity of an expert witness as required through interrogatories, 

and the failure to do so “is the result of extenuating circumstances beyond the 

control of the defaulting party, the court may grant a continuance or other 

appropriate relief.” Pa.R.Civ.P. 4003.5(b) (emphasis added). When

considering whether to exclude a plaintiff’s expert’s testimony, “[i]n the 

absence of bad faith or willful disobedience of the rules, the most significant 

considerations are the importance of the witness’ testimony and the prejudice, 

if any, to the party against whom the witness will testify.” Linker v. 

Churnetski Transp., Inc., 520 A.2d 502, 504 (Pa. Super. 1987). 

Here, the trial court found “no bad faith or misrepresentation” on 

Appellant’s part. Nevertheless, it declined to continue the case owing to the 

disruption to the “efficient and just administration of justice” that a sixth 

continuance would cause. Trial Ct. Op. at 3-4. Further, based on the prejudice 

caused by Appellant’s failure to timely identify and produce Dr. Nasr’s expert 

report, followed by Appellant’s admission that he intended to replace Dr. Nasr 
J-A24027-23

- 15 -

mere weeks prior to trial, the trial court properly exercised its discretion 

provided by Rule 4003.5(b) in declining to continue this matter rather than 

exclude Dr. Nasr’s expert report and testimony. This claim, thus, fails.

E.

In sum, none of Appellant’s issues merit relief. Accordingly, we affirm 

the trial court’s order granting summary judgment in favor of Appellees and 

dismissing Appellant’s claims with prejudice.

Order affirmed.

Date: 2/1/2024