J-A21006-14

*Retired Senior Judge assigned to the Superior Court. 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

GARY CHIODETTI, IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

DR. EUGENE FERNANDES,

Appellee No. 63 EDA 2013

Appeal from the Judgment Entered November 15, 2012

In the Court of Common Pleas of Philadelphia County

Civil Division at No(s): April Term, 2009; #0040

BEFORE: BOWES, OTT and STRASSBURGER, *JJ.

DISSENTING MEMORANDUM BY BOWES, J. FILED FEBRUARY 06, 2015

The learned Majority concedes that Dr. Iliff testified inconsistently and 

beyond the scope of his expert report when he “changed his opinion 

regarding the causation of Chiodetti’s blindness.” Majority Memorandum at 

10. Yet, without even a nod to Pa.R.C.P. 4003.5(c), which precludes experts 

from offering opinions on direct examination that are inconsistent with or go 

beyond the fair scope of their reports, the Majority simply cites Lykes v. 

Yates, 77 A.3d 27, 33 (Pa.Super. 2013), for the proposition that since the 

jury found no negligence, “any error regarding causation would not affect 

the verdict.” Id. It then goes on to hold that, since the jury’s finding that 

Dr. Fernandes did not breach the standard of care was fully supportable on 
J-A21006-14

- 2 -

standard of care evidence alone, the offending causation testimony could not 

have tainted the verdict. 

I believe the trial court erred in permitting Dr. Iliff to testify 

inconsistently with, and beyond the scope of, the opinions contained in his 

expert report in violation of Pa.R.C.P. 4003.5(c). Furthermore, contrary to 

my distinguished colleagues, I believe the offending testimony affected both 

the standard of care and causation as the issues were inextricably 

intertwined. Since the error may have affected the verdict, I would reverse 

and remand for a new trial on this basis. Hence, I respectfully dissent. 

Preliminarily, I believe that the proper standard of review of this issue 

is the one for the admissibility of evidence. 

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.

Gaudio v. Ford Motor Co., 976 A.2d 524, 535 (Pa.Super. 2009) (quoting 

Stumpf v. Nye, 950 A.2d 1032, 1036 (Pa.Super. 2008). “A party suffers 

prejudice when the trial court's error could have affected the verdict.” 

Trombetta v. Raymond James Financial Services, Inc., 907 A.2d 550, 

561 (Pa.Super. 2006) (emphasis added). 

Mr. Chiodetti alleges that he was ambushed by Dr. Iliff’s rejection of 

the CRAO diagnosis contained in his report and his adoption of Dr. Duker’s 
J-A21006-14

- 3 -

OAO diagnosis. Furthermore, he contends that since the defense experts did 

not criticize the post-operative testing in their reports, this testimony was a 

surprise, and, consequently, he had no rebuttal witness available to refute 

it.1 The record demonstrates the following. 

Mr. Chiodetti awoke blind in his right eye after surgery performed by 

Dr. Fernandes to repair a fractured orbit. Mr. Chiodetti’s expert, Dr. 

Kraushar, opined that Dr. Fernandes inadvertently injected anesthetic 

directly into the globe of Mr. Chiodetti’s eye causing the blindness. He 

arrived at that conclusion after diagnosing Mr. Chiodetti as suffering from a 

CRAO, a condition consistent with the injection of anesthetic directly into the 

eye, and Dr. Fernandes’ admission that he did not move the needle slightly 

before injecting anesthetic to ensure that it was not located in the eye itself. 

Dr. Kraushar testified that a physician is negligent if he fails to move the tip 

of the needle slightly to ensure that the globe does not move before 

injecting the anesthetic. 

Dr. Duker, the first of two defense experts to testify, disagreed that 

Dr. Fernandes injected anesthetic into the eye. He arrived at that conclusion 

after determining that Mr. Chiodetti suffered an OAO, a condition 

inconsistent with such an injection. Furthermore, Dr. Duker maintained that 

____________________________________________

1 Dr. Fernandes maintained that Dr. Iliff’s trial opinions regarding OAO were 

merely “refinements” of his initial diagnosis, Appellee’s brief at 19, a position 

rejected by the Majority as well as this author. 
J-A21006-14

- 4 -

the injection of anesthetic into the eye was not necessarily negligent; it was 

a known complication of eye surgery that rarely occurred. Finally, he 

disputed that Dr. Kraushar’s “wiggle method” was the standard of care. 

Dr. Iliff, the second defense expert, had prepared an expert report in 

which he rendered the following opinions. The morning after surgery, it was 

determined that Mr. Chiodetti had “no light perception” in the surgically 

treated eye. Dr. Iliff stated this was “most likely due to central retinal artery 

occlusion (CRAO),” and that embolus was “very unlikely.” Report, Nicholas 

Iliff, M.D., 12/29/10, at 2. He opined that the causes of Mr. Chiodetti’s 

blindness “which should be considered” are “CRAO, trauma to the optic 

nerve or microvascular spasm of perineural vessels[,]” id., but ultimately 

concluded that CRAO was the most likely. He agreed that an intraocular 

injection of lidocaine with epinephrine into the eye could cause a CRAO, but 

he disputed that Dr. Fernandes’ injection deviated from the standard of care, 

or that it perforated the eye so as to cause the CRAO. In his supplemental 

report, Dr. Iliff disagreed that “the standard of care requires that the needle 

on the syringe be moved to determine whether the eye moves with the 

needle.” Report, Nicholas T. Iliff, M.D., 2/28/11, at 1.

Dr. Iliff’s trial testimony was markedly different from his report. He 

characterized Dr. Kraushar’s theory of the injury as “a very unlikely 

scenario.” N.T. Trial (Jury) Vol. 4, 7/21/11, at 28. Although an OAO was 

not mentioned in his report as a possible cause of the blindness, he was 
J-A21006-14

- 5 -

asked on direct examination and over objection, “What findings were there 

in Mr. Chiodetti’s case that support the conclusion that the loss of vision was 

due to an obstruction of the ophthalmic artery?” Id. at 49. The expert then 

launched into a description of an OAO, how Mr. Chiodetti’s symptoms were 

consistent with both a CRAO and an OAO, and concluded that, “there’s 

certainly evidence here that there was a problem with the ophthalmic artery 

occlusion.” Id. at 57. 

Moments later, again over objection, Dr. Iliff was asked, “Now having 

looked at the entire set of materials again what is your opinion as to the 

cause of the vision loss?” Id. at 60. Dr. Iliff told the jury that while on his 

way to trial, the conclusion he reached was, “Ophthalmic artery occlusion, 

this is what I ultimately came to.” Id. at 63. Counsel then exhaustively 

explored on direct examination why Mr. Chiodetti’s findings fit the OAO 

scenario much better than the CRAO scenario he had originally concluded 

was the cause of blindness. Id. at 65-89. Dr. Iliff went on to criticize at 

length the post-operative test results that were inconsistent with an OAO. 

Notably, he opined that the post-operative carotid Doppler study that 

indicated good flow in the ophthalmic artery was inaccurate in measuring 

ophthalmic artery blood flow. Id. at 74. He testified that the tests meant 

nothing in this setting, that other tests were necessary to detect the 

blockage, and that the CT scan would not show the blood vessels. Id. at 

78-80. Dr. Iliff, using the CT scan, demonstrated to the jury why it was 
J-A21006-14

- 6 -

inadequate. None of this criticism was contained in his expert report; in 

fact, Dr. Iliff had relied on these same tests in reaching the conclusions 

stated in his report. 

Finally, Dr. Iliff told the jury there were four potential causes of an 

OAO: direct trauma, swelling, irritation, and clots. Id. at 85-86. He 

explained that all of these were normal consequences of the surgery and 

could cause an OAO even when the surgery is performed correctly. Id. at 

88. Dr. Iliff also reiterated Dr. Duker’s testimony that an inadvertent 

injection of local anesthesia into the globe would not cause an OAO. Id. at 

89.2 

The Majority concedes that Dr. Iliff’s trial testimony was inconsistent 

with and went far beyond the scope of his expert report. I submit that its 

admission was violative of Pa.R.C.P. 4003.5(c). Pa.R.C.P. 4003.5(c), often 

referred to as the fair scope rule, provides: 

(c) To the extent that the facts known or opinions held by an 

expert have been developed in discovery proceedings under 

subdivision (a)(1) or (2) of this rule, the direct testimony of the 

expert at the trial may not be inconsistent with or go beyond the 

fair scope of his or her testimony in the discovery proceedings as 

____________________________________________

2 On cross-examination, Dr. Iliff conceded that the term “OAO” did not 

appear anywhere in his reports. N.T. Trial (Jury) Vol. 4, 7/21/11, at 100. 

He also acknowledged that he did not address therein the use of the Doppler 

on the carotid or ophthalmic arteries. Id. He admitted that he was not 

present in court when Dr. Duker testified, but defense counsel supplied him 

with a synopsis of Dr. Duker’s testimony. 
J-A21006-14

- 7 -

set forth in the deposition, answer to an interrogatory, separate 

report, or supplement thereto. However, the expert shall not be 

prevented from testifying as to facts or opinions on matters on 

which the expert has not been interrogated in the discovery 

proceedings.

The Explanatory Note to Rule 4003.5 states in pertinent part:

To prevent incomplete or "fudging" of reports which would fail to 

reveal fully the facts and opinions of the expert or his grounds 

therefor, subdivision (c) provides that an expert's direct 

testimony at trial may not be inconsistent with or go beyond the 

fair scope of his testimony as set forth in his deposition and 

answer to interrogatories, separate report or supplements 

thereto. However, he may testify to anything which he has never 

questioned in the discovery proceedings. This is a new provision 

not expressly found in the Federal Rule. 

The rule is intended to avoid unfair surprise or prejudice at trial by 

permitting a party to prepare a meaningful response to the opponent’s 

expert. Jones v. Constantino, 631 A.2d 1289, 1294-95 (Pa.Super. 1993). 

It “favors the liberal discovery of expert witnesses and disfavors unfair and 

prejudicial surprise.” Id. (quoting Dibel v. Vagley, 612 A.2d 493, 499 

(Pa.Super. 1992). The rule precludes experts from testifying on direct 

examination to opinions that are inconsistent with or beyond the scope of 

the opinions in their expert reports. 

In Jones, supra, we affirmed the trial court’s grant of a new trial 

based on the defense expert’s testimony at trial that exceeded the scope of 

his expert report. The expert testified that traction, “an injury caused by the 
J-A21006-14

- 8 -

normal manipulation of extremely fragile ducts in the course of the 

surgery[,]” was the cause of plaintiff’s problem following gallbladder surgery. 

Jones, supra at 1296. However, in his expert report, the expert had 

opined only that the injury sustained by the plaintiff during elective 

gallbladder surgery was unavoidable and not caused by negligence, and he 

offered no alternative cause. We rejected the defense contention that the 

plaintiff suffered no prejudice from the expert’s deviation from his report, 

and held that that Rule 4003.5 does not permit an expert to “make a bald 

assertion of non-negligence in his expert report and then proffer an in-depth 

theory explaining absence of culpability at trial.” Id. We refused to sanction 

“ambiguity and avoidance” in expert reports, and held that reports which did 

not apprise the opponent of the basis for the expert’s conclusion failed to 

comport with Pa.R.C.P. 4003.5(c). 

Walsh v. Kubiak, 661 A.2d 416 (Pa.Super. 1995), involved claims of 

medical malpractice and battery for lack of informed consent against an 

orthopedic surgeon. The defense expert’s report only discussed the lack of 

negligence and did not address the necessity for the surgery. The trial court 

precluded the expert from expressing any opinion at trial that the surgery 

was in fact necessary on the ground that the opinion was outside the scope 

of his report. On appeal, the defendant alleged this restriction constituted 

reversible error. We affirmed, finding nothing in the expert report that 

would have permitted the plaintiff to anticipate that the expert would 
J-A21006-14

- 9 -

express the opinion that the surgery was necessary. Thus, Plaintiff could not 

have adequately prepared to cross-examine the expert on the subject of 

surgery. Furthermore, the only expert for plaintiff who could have rebutted 

the expert’s proposed testimony had already testified and been excused. 

We concluded that the plaintiff would have been prejudiced by the 

introduction of such testimony, and that the trial court properly limited the 

scope of the expert’s testimony to the conclusions stated in his report. 

More recently, in Woodard v. Chatterjee, 827 A.2d 433 (Pa.Super. 

2003), a motor vehicle accident case, plaintiff’s expert testified based on the 

records of other physicians that Woodard sustained an acute cervical 

radiculopathy due to the accident. However, the expert’s report noted only 

“some lingering neck pain and stiffness” from an earlier accident and made 

no mention of a cervical injury. Id. at 437. The trial court found that the 

expert’s testimony exceeded the fair scope of his report, but found no 

prejudice or surprise because Ms. Chatterjee was privy to the EMG report 

upon which the expert relied and “had adequate time to prepare a rebuttal.” 

Id. at 442. This Court reversed and awarded a new trial, concluding that 

not only did the testimony exceed the fair scope of the expert’s report, it 

was prejudicial as well. We ruled that Ms. Chatterjee lacked sufficient notice 

that the only trial expert would testify about the findings and diagnoses of 

other physicians to whom he made no reference in his own reports. 
J-A21006-14

- 10 -

In Brodowski v. Ryave, 885 A.2d 1045, 1065-1066 (Pa.Super. 2005) 

(en banc), this Court affirmed the trial court’s refusal to admit expert 

testimony that was not addressed in the experts’ reports on the basis of 

unfair surprise. We held that since the experts’ reports did not address 

“what Dr. Byron should have known or what inquiries, if any, he should have 

made to the unknown person who reported to him that night[,]” expert 

testimony on this question was properly precluded as beyond the scope of 

the reports. 

There is considerable precedent interpreting Rule 4003.5(c) as 

requiring a showing of prejudice to the opposing party in order for admission 

of the offending expert testimony to be considered reversible error. See 

Butler v. Kiwi, S.A., 604 A.2d 270, 276 (Pa.Super. 1992); Augustine v. 

Delgado, 481 A.2d 319, 200-5 (Pa.Super. 1984). Where surprise results in 

the opposing party’s inability to meaningfully cross-examine a witness or 

offer a rebuttal witness, we have found sufficient prejudice to warrant a new 

trial. Notably absent is any analysis of whether the error may have affected 

the verdict, which is the standard applied by the Majority herein, presumably 

because it is implicit that such prejudice may affect the verdict. 

I believe Mr. Chiodetti has demonstrated that he was ambushed by Dr. 

Iliff’s reversal and placed at considerable disadvantage in cross-examining 

the expert. Furthermore, Mr. Chiodetti was anticipating that Dr. Iliff would 

testify consistently with his report and favorably to Plaintiff that Mr. 
J-A21006-14

- 11 -

Chiodetti sustained a CRAO, a condition that may result from an inadvertent 

injection of anesthetic into the eye. Instead, by rejecting that diagnosis and 

adopting Dr. Duker’s OAO diagnosis, Dr. Iliff effectively ruled out an 

inadvertent injection of anesthetic as the cause of Mr. Chiodetti’s blindness, 

totally undercutting Plaintiff’s liability theory. Had Dr. Iliff testified 

consistently with his report, Mr. Chiodetti could have pointed to a defense 

expert who agreed with his expert’s diagnosis, which was consistent with his 

theory of how the injury occurred. Thus, not only was Dr. Iliff’s turn-about a 

complete surprise to Mr. Chiodetti, it also undercut Plaintiff’s theory that Dr. 

Fernandes injected anesthetic directly into Mr. Chiodetti’s eye. 

Moreover, Dr. Iliff’s trial testimony was unfairly prejudicial in another 

important respect. In his report, Dr. Iliff offered no discussion, and 

certainly, no criticism, of the Doppler studies and CT scan results, all of 

which he reviewed and relied upon in authoring his report. The results of 

those objective tests thoroughly undermined the OAO diagnosis as they 

showed normal ophthalmic artery blood flow. At trial, over objection, Dr. 

Iliff was permitted to testify at length that the objective tests were 

inaccurate and to explain why the results did not rule out OAO as the cause 

of Mr. Chiodetti’s blindness. Since Dr. Duker’s expert report also did not 

discuss or criticize the accuracy of the Doppler studies and CT scans that 

showed no interrupted blood flow in the ophthalmic artery, which seemingly 

refuted a diagnosis of OAO, I am persuaded by Mr. Chiodetti’s contention 
J-A21006-14

- 12 -

that this attack came as a complete surprise and that he was not prepared. 

Not only was his ability to cross-examine Dr. Iliff regarding the tests 

severely compromised, but he had no rebuttal expert in the wings who could 

refute the attacks on the validity of the testing. I submit that this was the 

type of prejudice to the opposing party that Pa.R.C.P. 4003.5(c) was 

intended to prevent. 

The Majority agrees that Dr. Iliff’s testimony on direct examination 

was inconsistent with and went far beyond the scope of his report, but does 

not address Pa.R.C.P. 4003.5, or analyze the impact of the erroneously 

admitted expert testimony upon the opposing party, Mr. Chiodetti. Instead, 

it mistakenly dismisses the offending testimony as related solely to 

causation, and then concludes that since the jury found no breach of the 

standard of care, it never reached the causation issue. I find the latter 

assumption untenable on the record herein.3 

In the instant case, negligence and causation were interwoven. Mr. 

Chiodetti maintained that Dr. Fernandes negligently injected anesthetic 

directly into the globe of his eye because he failed to perform a wiggle 

____________________________________________

3 The jury responded in the negative to the first question on the verdict slip: 

“Did you find that the conduct of the defendant doctor fell below 

the applicable standard of care? In other words, was the 

defendant doctor negligent?”
J-A21006-14

- 13 -

maneuver prior to injecting the anesthesia to ensure that the needled was 

not located in the eye. A diagnosis of CRAO was consistent with the 

injection scenario; a diagnosis of OAO was not. Thus, Dr. Iliff’s offending 

diagnosis testimony was highly probative of whether or not Dr. Fernandes 

inadvertently injected the anesthetic into Mr. Chiodetti’s eye in the first 

instance. The expert’s rejection at trial of his earlier CRAO diagnosis in favor 

of OAO effectively ruled out the negligent injection of anesthetic into the 

globe of Mr. Chiodetti’s eye as the mechanism of injury. If the jury believed 

the defense experts that OAO rather than CRAO was the proper diagnosis, it 

necessarily followed that Dr. Fernandes did not negligently inject the eye 

with anesthetic. 

I submit that the jury’s verdict of no negligence is consistent with a 

finding either that the wiggle method was not the standard of care for the 

injection of anesthetic or that Dr. Fernandes did not inject anesthesia 

directly into Mr. Chiodetti’s eye. Since Dr. Iliff’s offending testimony 

undermined the latter, it was highly probative of negligence. Hence, I find 

unsupportable the Majority’s conclusion that such testimony related only to 

causation, and that the jury did not consider it in arriving at its conclusion 

that Dr. Fernandes was not negligent. 

Finally, I believe the Majority’s analysis of the sufficiency of the 

standard of care evidence is misguided and irrelevant to our determination. 

The fact that the standard-of-care evidence alone could sustain the jury’s 
J-A21006-14

- 14 -

verdict has no bearing on whether the erroneously admitted evidence may 

have affected the verdict. I submit Dr. Iliff’s improperly admitted testimony 

tended to prove that Dr. Fernandes did not inject the eye, negligently or 

otherwise, and thus, it may have contributed to the jury’s verdict that his 

conduct did not fall below the standard of care. Hence, I would reverse for a 

new trial.