J. A32042/14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

MARGARET WILSON : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellee :

:

v. :

:

PETER L. KING, D.P.M., :

:

Appellant : No. 1178 EDA 2014

Appeal from the Judgment Entered March 27, 2014

In the Court of Common Pleas of Philadelphia County 

Civil Division No(s).: November Term, 2010 No. 3488

MARGARET WILSON, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellant :

:

v. :

:

PETER L. KING, D.P.M., :

:

Appellee : No. 1379 EDA 2014

Appeal from the Judgment Entered March 27, 2014

In the Court of Common Pleas of Philadelphia County 

Civil Division No(s).: 03488 Nov. Term 2010

BEFORE: PANELLA, OLSON, and FITZGERALD,*JJ.

MEMORANDUM BY FITZGERALD, J.: FILED APRIL 16, 2015

Appellant/Cross-Appellee, Peter L. King, D.P.M. (“Dr. King”), appeals 

from the judgment entered by the Philadelphia County Court of Common 

Pleas following an order granting in part and denying in part his motion for 

 

*

Former Justice specially assigned to the Superior Court.
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post-trial relief following a jury verdict in favor of Appellee/Cross-Appellant, 

Margaret Wilson (“Wilson”). Dr. King alleges the trial court erred by 

permitting Dr. Andrew Schneider, an oncologist, to testify as to the standard 

of care for Dr. King, a podiatrist. Dr. King maintains the court erred by 

permitting two of Wilson’s experts to testify and holding that Wilson 

introduced sufficient evidence of causation. Wilson cross-appeals on the 

basis that the court improperly reduced the jury’s verdict from $1.1 million 

to $750,000. We affirm.

We adopt the facts and procedural history set forth in the trial court’s 

opinions. See Trial Ct. Op., 6/27/14, at 1-5; Trial Ct. Op., 6/12/14, at 1-3.1 

Following the February 28, 2014 verdict, Dr. King filed a timely post-trial 

motion requesting judgment notwithstanding the verdict, a new trial, or a 

remittitur. Before the court rendered its ruling on Dr. King’s post-trial 

motion, it entered judgment on the verdict on March 26, 2014. On April 3, 

 

1 Although both parties requested that the trial transcript be part of the 

certified record, the record transmitted to this Court did not include the 

complete trial transcript. We have held that failure to include the trial 

transcript in the certified record typically precludes appellate review. Floyd 

v. Phila. Elec. Co., 632 A.2d 1314, 1315 (Pa. Super. 1993). More recently, 

however, our Supreme Court held “that where the accuracy of a pertinent 

document is undisputed, the Court could consider that document if it was in 

the Reproduced Record, even though it was not in the record that had been 

transmitted to the Court.” Pa.R.A.P. 1921 note (citing Commonwealth v. 

Brown, 52 A.3d 1139, 1145 n.4 (Pa. 2012)). In this case, because a copy 

of the trial transcript is part of the reproduced record and neither party has 

disputed its accuracy, we will resolve the parties’ claims on their merits. 

See id.
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2014, the court entered the order granting in part and denying in part Dr. 

King’s post-trial motion. Dr. King timely appealed on April 8, 2014, and 

Wilson timely cross-appealed on April 14, 2014. On May 6, 2014, the court 

again entered judgment in favor of Wilson.

2

 Both parties filed timely courtordered Pa.R.A.P. 1925(b) statements. This Court sua sponte consolidated 

the parties’ appeals.

Dr. King raises the following issues on appeal:

Did the trial court err in permitting Andrew Schneider, 

M.D. (“Dr. Schneider”), an oncologist, to testify as to the 

standard of care for Dr. King, a podiatrist, under the 

common law of Pennsylvania when Dr. Schneider testified 

that he did not treat foot ulcers, he never diagnosed 

cancer of the foot and the patients he sees have already 

been diagnosed with cancer or cancer was suspected, and 

when he has not shown an overlap between the standard 

of care for an oncologist and for a podiatrist concerning 

cancer of the foot?

Did the trial court err in denying the motions of Dr. King 

for compulsory non-suit and for post-trial relief when 

Wilson’s experts, Dr. Schneider and [Jack Gorman, D.P.M. 

(“Dr. Gorman”)], failed to meet the requirements of 

Pennsylvania Rule of Evidence 705 by not indicating the 

basis for their conclusion that Dr. King had violated the 

standard of care required of a podiatrist in not timely 

diagnosing squamous cell carcinoma of the left foot?

Did the trial court err in denying the motions of Dr. King 

for compulsory non-suit and for post-trial relief because 

Wilson produced insufficient evidence of causation where 

her experts, Dr. Schneider and [Dr. Gorman], failed to 

 

2 Thus, this Court’s appellate jurisdiction was perfected. See generally 

Johnston the Florist, Inc. v. TEDCO Const. Corp., 657 A.2d 511, 514 

(Pa. Super. 1995) (en banc).
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indicate a causal connection between any breach of the 

standard of care by Dr. King and any injury suffered by 

Wilson and failed to meet the requirements of 

Pennsylvania Rule of Evidence 705 by not setting forth 

sufficient evidence to support causation?

Dr. King’s Brief at 5-6.

We summarize Dr. King’s arguments for all of his issues.3 Dr. King 

claims that Dr. Schneider had no experience with podiatrists and the court 

should not have permitted him to testify about the standard of care for 

podiatrists. He maintains that Dr. Gorman, a podiatrist, gave such 

conclusory testimony that, in conjunction with Dr. Schneider’s flawed 

testimony, a new trial was warranted. Dr. King asserts that Dr. Gorman and 

Dr. Schneider’s testimony also failed to comply with Pa.R.E. 705, which 

states that an expert “must state the facts or data on which the opinion is 

based.” Pa.R.E. 705. We hold Dr. King has not established entitlement to 

relief. 

 

3 Despite raising three issues, King makes five arguments, thus violating 

Pa.R.A.P. 2119(a), which mandates that “argument shall be divided into as 

many parts as there are questions to be argued.” See Pa.R.A.P. 2119(a). 

We decline to quash. See PHH Mortg. Corp. v. Powell, 100 A.3d 611, 615 

(Pa. Super. 2014) (refusing to quash appeal despite numerous violations of 

appellate briefing rules); see also Commonwealth v. Briggs, 12 A.3d 291, 

343 (Pa. 2011) (“The briefing requirements scrupulously delineated in our 

appellate rules are not mere trifling matters of stylistic preference; rather, 

they represent a studied determination by our Court and its rules committee 

of the most efficacious manner by which appellate review may be conducted 

so that a litigant’s right to judicial review as guaranteed by Article V, Section 

9 of our Commonwealth’s Constitution may be properly exercised.”).
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An appellate court will reverse a trial court’s grant or 

denial of a JNOV only when the appellate court finds an 

abuse of discretion or an error of law. Our scope of review 

with respect to whether judgment n.o.v. is appropriate is 

plenary, as with any review of questions of law.

In reviewing a motion for judgment n.o.v., the 

evidence must be considered in the light most 

favorable to the verdict winner, and he must be 

given the benefit of every reasonable inference 

of fact arising therefrom, and any conflict in the 

evidence must be resolved in his favor. 

Moreover, a judgment n.o.v. should only be 

entered in a clear case and any doubts must be 

resolved in favor of the verdict winner. Further, 

a judge’s appraisement of evidence is not to be 

based on how he would have voted had he been 

a member of the jury, but on the facts as they 

come through the sieve of the jury’s 

deliberations.

There are two bases upon which a judgment 

n.o.v. can be entered: one, the movant is 

entitled to judgment as a matter of law, and/or 

two, the evidence was such that no two 

reasonable minds could disagree that the 

outcome should have been rendered in favor of 

the movant. With the first a court reviews the 

record and concludes that even with all factual 

inferences decided adverse to the movant the 

law nonetheless requires a verdict in his favor, 

whereas with the second the court reviews the 

evidentiary record and concludes that the 

evidence was such that a verdict for the movant 

was beyond peradventure.

Questions of credibility and conflicts in the evidence are for 

the fact-finder to resolve and the reviewing court should 

not reweigh the evidence. If there is any basis upon which 

the jury could have properly made its award, the denial of 

the motion for judgment n.o.v. must be affirmed.
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Braun v. Wal-Mart Stores, Inc., 24 A.3d 875, 890-91 (Pa. Super. 2011) 

(per curiam) (punctuation and citations omitted), aff’d, 106 A.2d 656 (Pa. 

2014).

With respect to an order resolving a motion for a new trial, the 

standard of review is abuse of discretion. Harman v. Borah, 756 A.2d 

1116, 1122 (Pa. 2000). The analysis has two stages.

First, the trial court must decide whether one or more 

mistakes occurred at trial. These mistakes might involve 

factual, legal, or discretionary matters. Second, if the trial 

court concludes that a mistake (or mistakes) occurred, it 

must determine whether the mistake was a sufficient basis 

for granting a new trial. The harmless error doctrine 

underlies every decision to grant or deny a new trial. A 

new trial is not warranted merely because some 

irregularity occurred during the trial or another trial judge 

would have ruled differently; the moving party must 

demonstrate to the trial court that he or she has suffered 

prejudice from the mistake.

Id. (citations omitted). If the alleged mistake involved a discretionary 

matter, then our standard of review is abuse of discretion; if the alleged 

mistake involved an error of law, then our standard of review is de novo. 

Id. at 1123 (citations omitted).

“It is axiomatic that questions concerning the admission or exclusion 

of evidence are within the sound discretion of the lower court and will be 
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reversed on appeal only where a clear abuse of discretion exists.” 

Bucchianeri v. Equitable Gas Co., 491 A.2d 835, 838 (Pa. Super. 1985).4

Before a court will order a new trial, it must conclude that 

the errors at trial led to an incorrect result. Unless there is 

a substantial reason therefor, a new trial should not be 

granted in a negligence case. In an appeal from a jury 

trial, where the moving party alleges reversible error he 

must show not only the existence of the error, but also 

that the jury was misled by this error to his detriment. It 

is only when improperly admitted evidence may have 

affected a verdict that a new trial will be the correct 

remedy.

Warren v. Mosites Const. Co., 385 A.2d 397, 401 (Pa. Super. 1978) 

(citations omitted).

We need not resolve whether having an oncologist testify as to the 

standard of care for a podiatrist was error. Assuming that the trial court 

erred by permitting Dr. Schneider to testify, we ascertain whether Dr. 

Schneider’s testimony misled the jury such that it led to an incorrect result 

in this medical malpractice action. See id.; Harman, 756 A.2d at 1122. In 

this case, Dr. Gorman, a podiatrist, testified that Dr. King “deviated from the 

standard of care of a reasonable prudent podiatrist” by failing to timely 

biopsy Wilson’s nonhealing ulcer to ascertain the existence of cancer. N.T., 

2/23/14, at 32, 34-35 (trial deposition). We add that Dr. Gorman arrived at 

his opinion prior to reviewing Dr. Schneider’s expert report. Id. at 31; Ex. C 

 

4 We may rely on cases predating the adoption of the Pennsylvania Rules of 

Evidence to the extent those cases do not contradict the rules. See 

Commonwealth v. Aikens, 990 A.2d 1181, 1185 n.2 (Pa. Super. 2010).
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to King’s Motion in Limine to Preclude Wilson’s Expert, Dr. Gorman, from 

Offering Expert Oncologic Testimony Regarding Causation and Damages 

Against King, 6/11/13 (Report of Dr. Gorman, 12/21/10).5 Because a 

podiatrist, Dr. Gorman, testified that Dr. King deviated from a podiatric 

standard of care, and the basis for that opinion predated a review of Dr. 

Schneider’s report, which corroborated Dr. Gorman’s initial report, we 

cannot conclude Dr. Schneider’s testimony affected the verdict and led to an 

incorrect result. See Warren, 385 A.2d at 401. Indeed, we observe that 

Dr. King himself testified that a nonhealing ulcer is a symptom of the cancer 

at issue and that a biopsy is the only method to diagnose that cancer. N.T., 

2/21/14, at 32-33. 

Regarding King’s second and third issues, we state the following as 

background. “If an expert states an opinion the expert must state the facts 

or data on which the opinion is based.” Pa.R.E. 705. “The disclosure can be 

accomplished in several ways. One way is to ask the expert to assume the 

truth of testimony the expert has heard or read. Another option is to pose a 

hypothetical question to the expert.” Pa.R.E. 706 cmt. “But the required 

disclosure can also be made by simply asking the expert to state the facts or 

 

5 We acknowledge that Dr. Gorman, after reviewing Dr. Schneider’s report, 

prepared supplemental reports reiterating his initial findings. See, e.g., 

N.T., 2/23/14, at 31; Ex. C to King’s Motion in Limine to Preclude Wilson’s 

Expert, Dr. Gorman, from Offering Expert Oncologic Testimony Regarding 

Causation and Damages Against King, 6/11/13 (Report of Dr. Gorman, 

1/7/13).
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data on which the opinion is based either before or after requesting the 

opinion.” Leonard Packel & Anne Bowen Poulin, Pennsylvania Evidence § 

705-1 (4th ed. 2013).

After careful consideration of the parties’ briefs, the certified record, 

and the decision of the Honorable Leon Tucker, we affirm King’s second and 

third issues based on the trial court’s decision. See Trial Ct. Op. at 17-18 

(concluding that Drs. Schneider and Gorman identified photographs, 

deposition testimony, other expert reports, and learned treatises they relied 

on in arriving at their conclusions, which established causation); accord 

Packel, supra. Without exhaustively recounting the expert testimony, we 

add that both doctors testified that the delay in diagnosing Wilson’s cancer 

caused her foot amputation. See, e.g., N.T., 2/23/14, at 52; N.T., 2/20/14, 

29, 60. Accordingly, as there is a basis upon which the jury could have 

rendered its verdict, we must affirm the denial of King’s motion for judgment 

notwithstanding the verdict. See Braun, 24 A.3d at 891.

Having resolved the issues in King’s appeal, we address Wilson’s 

issues:

Did the trial court err as a matter of law and abuse its 

discretion by granting judgment [notwithstanding the 

verdict], in favor of . . . King . . . as to past medical 

expenses, thereby eliminating the jury’s verdict on past 

medical expenses, where a review of the record clearly 

leads to the conclusion that the law and evidence requires 

a verdict on medical expenses in favor of [Wilson]?

Did the trial court err as a matter of law and abuse its 

discretion by granting remittitur on the jury’s verdict of 
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$1.1 million, reducing the verdict to the pain and suffering 

award of $750,000.00 only and setting aside the jury’s 

award of $350,000.00 for past medical expenses, where 

there is no evidence that the jury’s award for past medical 

expenses was influenced by “caprice, prejudice, partiality, 

corruption or some other improper influence”, or that the 

jury’s award as to past medical expenses “so shocks the 

sense of justice as to suggest the jury was influenced by 

partiality, prejudice, mistake or corruption”?

Wilson’s Brief at 7.

In support of her first issue, Wilson contends King was not entitled to 

JNOV because she “is entitled to recover damages for past medical expenses 

paid by Medicare for which she may be required to reimburse Medicare from 

any verdict” in her favor. Id. at 18. She maintains that no two reasonable 

minds could agree that the evidence was insufficient to establish the amount 

of her past medical expenses. We hold Wilson is not entitled to relief.

As noted above, the standard of review for an order resolving a motion 

for JNOV is abuse of discretion or error of law. See Braun, 24 A.3d at 890. 

Instantly, the trial court did not enter, in King’s favor, a judgment

notwithstanding the verdict. The court entered judgment in favor of Wilson

for $750,000. J., 5/6/14, at 1. Thus, this Court cannot reverse the trial 

court’s order granting King’s motion for JNOV, as the trial court never ruled 

in his favor. See generally Braun, 24 A.3d at 890.

Lastly, Wilson argues that the court erred by granting remittitur and 

eliminating the jury’s award of $350,000 for past medical expenses. She 

asserts that the jury’s award was not excessive or “guided by partiality, 
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prejudice, mistake or corruption.” Wilson’s Brief at 18. Wilson claims that 

she did not need to “provide the jury a specific number to award for past 

medical expenses.” Id. at 27. Rather, she insists that she only had to 

provide the jury “a reasonable amount of information sufficient to enable 

[the jury] to estimate damages without engaging in speculation.” Id.

(quoting Detterline v. D’Ambrosio’s Dodge, Inc., 763 A.2d 935, 941 (Pa. 

Super. 2000)). We discern no basis for granting relief to Wilson. 

Our Supreme Court has discussed remittitur as follows:

Judicial reduction of a jury award is appropriate only 

when the award is plainly excessive and exorbitant. The 

question is whether the award of damages falls within the 

uncertain limits of fair and reasonable compensation or 

whether the verdict so shocks the sense of justice as to 

suggest that the jury was influenced by partiality, 

prejudice, mistake, or corruption.

[T]he excessiveness of the verdict is peculiarly within the 

discretion of the trial court and will not be reversed unless 

an abuse of discretion or an error of law has been 

committed.

Haines v. Raven Arms, 640 A.2d 367, 369 (Pa. 1994); accord Zauflik v. 

Pennsbury Sch. Dist., 104 A.3d 1096, 1129 (Pa. 2014).

In Detterline, this Court examined whether the trial court erred in 

denying the defendant’s motion for JNOV and remittitur. Detterline, 763 

A.2d at 936. In Detterline, the decedent’s wife sued the defendant for 

negligence stemming from a motor vehicle accident that resulted in her 

husband’s death. Id. The jury awarded damages of $676,000, and the 

defendant moved for remittitur because the jury lacked sufficient 
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information to justify its award. Id. at 940-41. The Detterline Court held 

the trial court did not abuse its discretion because the decedent’s wife 

“testified regarding the decedent’s education, employment history, 

relationship with his family, and salary of eight dollars per hour.” Id.

(citation omitted). Further, the trial court instructed the jury that the 

decedent could have lived for “46.4 more years” and the amount did not 

shock this Court’s conscience. Id. Thus, this Court discerned no abuse of 

discretion. Id.

The instant case is unlike Detterline in that Wilson did not introduce 

any evidence substantiating the monetary amount of her past medical 

expenses. We acknowledge that King’s medical expert testified that Wilson’s 

past medical expenses were necessary. See N.T. 2/26/14, at 70. But no 

testimony was elicited as to the amount, unlike the testimony of the 

decedent’s wife in Detterline. See Detterline, 763 A.2d at 936. Given the 

paucity of Wilson’s evidence, we discern no abuse of discretion by the trial 

court for granting King’s request for remittitur. See Haines, 640 A.2d at 

369. Conversely, absent evidence, it is difficult to conclude that the amount 

of the award at issue was fair and reasonable. See id. Accordingly, having 

discerned no abuse of discretion or error of law, we affirm the judgment 

below.

Judgment affirmed. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/16/2015