J-A31035-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

DAVID A. AND KRISTEN E. GULLA, HIS 

WIFE,

IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellants

v.

DOUGLAS CHYATTE,

Appellee No. 618 MDA 2015

Appeal from the Judgment Entered March 20, 2015

in the Court of Common Pleas of Luzerne County

Civil Division at No.: 3566-2007

BEFORE: PANELLA, J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY PLATT, J.: FILED JANUARY 06, 2016

Appellants, David A. Gulla, and Kristen E. Gulla, his wife, appeal from 

the judgment entered following a jury verdict in favor of Douglas Chyatte, 

M.D., Appellee in this medical malpractice case. Appellants challenge the 

denial of their motion for judgment notwithstanding the verdict (judgment 

n.o.v.) and their motion for a new trial. They also challenge the admission 

of certain evidence. We affirm on the basis of the trial court opinion. 

In its opinion, the trial court fully and correctly sets forth the relevant 

facts and procedural history of this case. Therefore, we have no reason to 

restate them at length here. 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.
J-A31035-15

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We note briefly for the sake of clarity and convenience of reference 

that Appellant David Gulla underwent spinal surgery, specifically, anterior 

lumbar interbody fusion (also referred to as “ALIF”), performed by Appellee 

Dr. Chyatte on April 5, 2005. After he was re-admitted to the hospital with 

severe pain in the lower back and left leg, Dr. Chyatte performed a second 

surgery on Mr. Gulla on April 14, 2005. Mr. Gulla had undergone similar 

surgery previously, in November of 1994, while he was in the Navy. He 

received a medical discharge in August of 1995. (See Appellants’ Brief, at 

7). Mr. Gulla elected not to undergo a third surgery with Dr. Chyatte. (See 

id. at 11). In September 2010 he underwent surgery with Dr. Christian I. 

Fras. (See id.). 

After trial, the jury answered “Yes” to the following question: “Do you 

find that [Appellee], Douglas Chyatte, MD was negligent?” (Verdict Slip, 

10/20/14, at 1; see also N.T. Trial, 10/20/14, at 727-30). However, the 

jury unanimously answered “No” to Question 2, “[W]as the negligence of 

[Appellee], Douglas Chyatte, MD a factual cause in bringing about the 

injuries and harm of [Appellant] David A. Gulla?” The jury unanimously 

answered “Yes” to Question 3, whether Appellee Dr. Chyatte “sufficiently 

disclosed the risks associated with [ALIF] surgery to [Appellant] David A. 

Gulla prior to performing the surgery?” 

As instructed in the verdict slip, because Appellants could not recover 

based on the answers to these three questions, the jury did not answer the 
J-A31035-15

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remaining three questions, and they returned to the courtroom. (See

Verdict Slip, at 2). The trial judge polled the jury, which was unanimous. 

(See N.T. Trial, at 730).

Appellants maintain chiefly that the jury’s verdict, finding that Dr. 

Chyatte’s negligence was not the factual cause of any harm to Appellants, 

was against the weight of the evidence, requiring a judgment n.o.v. and a 

new trial on damages, or a new trial on causation and damages. (See

Appellants’ Brief, at 15). 

Appellants raise four questions on appeal:

A. Did the trial court err and abuse its discretion by denying 

[Appellants’] post-trial motion for judgment n.o.v. as to 

causation and a new trial on damages?

B. Did the trial court err and abuse its discretion by denying 

[Appellants’] post-trial motion for a new trial as to both 

causation and damages?

C. Did the trial court err in allowing the publication to the jury of 

medical records containing hearsay?

D. Did the trial court err in allowing the publication to the jury 

of a medical illustration (Exhibit D-82b)?

(Appellants’ Brief, at 4).1

____________________________________________

1 We note for the sake of completeness that there is no indication of any 

objection to any of the jury instructions in the record, Appellants did not 

include a challenge to the legal adequacy of the jury instructions in their 

Concise Statement of Errors, (see Concise Statement, 5/06/15, at 1-5), and 

Appellants do not present any challenge to the jury instructions in their brief 

on appeal. 
J-A31035-15

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After a thorough review of the record, the briefs of the parties, the 

applicable law, and the well-reasoned opinion of the trial court we conclude 

that there is no merit to the issues Appellants have raised on appeal. The 

trial court opinion properly disposes of the questions presented. (See Trial 

Court Opinion, 6/05/15, at unnumbered pages 4-8) (finding: (1) it was 

impossible to find that Appellants were entitled to judgment as matter of 

law; trial court properly denied judgment n.o.v.; (2) new trial was not 

warranted when jury did not find negligence to be a substantial factor in 

causing injury to Appellant where medical experts disagreed on whether 

alleged injury had occurred; verdict did not shock sense of justice; (3) 

medical records were properly admitted into evidence; Appellants failed to 

show how they were prejudiced by publication to jury; and (4) properly 

authenticated medical illustrations were relevant to show proper placement 

of “cages” used in spinal surgery; trial court properly permitted publication 

to jury). Accordingly, we affirm on the basis of the trial court’s opinion.

Judgment affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/6/2016
Filing ID: 2065449 

2007-03566-0250 Opinion 

Luzerne County Civil Records 

6/5/2015 11 :20:59 AM 

judgment notwithstanding the verdict and a new trial on damages or both damages and 

On October 29, 2014, Plaintiffs filed a motion for post-trial relief requesting a 

David Gulla. 

determined that Dr. Chyatte sufficiently disclosed the risks associated with the surgery to 

negligence was not a factual cause of the injuries suffered by David Gulla. The jury also 

2015. Although the jury found Dr. Chyatte to be negligent, they determined that his 

Medical Center. After four days of testimony, the jury reached a verdict on October 20, 

Trial commenced on October 14, 2015 against Defendants Chyatte and Geisinger 

were provided by Douglas Chyatte, MD at the Geisinger Medical Center. 

the Defendants. Specifically, Plaintiffs claimed that negligent medical surgery and treatment 

Complaint was eventually filed on March 20, 2008 and alleged medical negligence against 

Medical Center, Geisinger Medical Group, Geisinger Health Group and Geisinger Clinic. A 

by filing a Praecipe of Summons against Defendants, Douglas Chyatte, MD, Geisinger 

Plaintiffs, David A. Gulla and Kristen Gulla; initiated this matteron April 3, 2007 

BY THE HONORABLE MICHAEL T. VOUGH 

OPINION PURSUANT TO 1925{a){l) 

V. 

Plaintiffs CIVIL ACTION--LAW 

NO: 3566 OF 2007 

DOUGLAS CHYATTE, MD, 

GEISINGER MEDICAL CENTER, 

Defendants 

DAVID A. GULLA and KRJSTEN 

GULLA, his wife, 

IN THE COURT OF COMMON PLEAS 

OF LUZERNE COUNTY 

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causation. Plaintiffs filed an amended motion for post-trial relief and brief on January 22, 

2015. In their amended motion, Plaintiffs again requested a judgment notwithstanding the 

verdict and a new trial on damages or both damages and causation. Defendants responded to 

and opposed both motions. On March 11, 2015, an Order was issued denying the motion and 

amended motion for post-trial relief filed by Plaintiffs. 

A timely notice of appeal was filed by Plaintiffs on April 8, 2015. Although 

Plaintiffs failed to serve this Court with a copy of the notice of appeal as required by 

Pa.R.A.P. 906(a)(2) we ordered that they file and serve a concise statement of errors 

complained of on appeal within twenty-one days of April 20, 2015. Plaintiffs filed and 

served their concise statement-on May 6, 2015 to which Defendants responded on May 18, 

2015. In their statement, Plaintiffs allege that the trial court erred in denying their motion for 

a judgment notwithstanding the verdict as to causation and a new trial on damages. They 

also allege error in denying a new trial as to causation and damages. Finally, Plaintiffs allege 

error by the trial court in allowing the publication to the jury of medical records containing 

hearsay and a medical illustration. 

A judgment notwithstanding the verdict should only be entered in a clear case with 

any doubts resolved in favor of the verdict winner. Bilih Center v. St. Paul Companies, Inc., 

787 A.2d 376, 383 (Pa. 2001) quoting, Moure v. Raeuchle, 604 A.2d 1003, 1007 (Pa. 1992). 

A judgment notwithstanding the verdict may be entered in two instances: "(l) where the 

movant is entitled to judgment as a matter of law; and/or (2) the evidence was such that no 

two reasonable minds could disagree that the verdict should have been rendered for the 

movant." Vanzandt v. Holy Redeemer Hospital, 806 A.2d 879, 885 (Pa.Super. 2002) 

quoting Parker v. Howard S. Freilich, 803 A.2d 738, 744 (Pa.Super. 2002)(citation omitted). 

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appropriate and within the standard of care. Id. at 620. 

at 608. Dr. Welch also gave an opinion that Dr. Chyatte's care was reasonable and 

indicated that hardware migration was a known risk of this type of surgery. N. T. (10/17 /14) 

fusion surgery. N.T. (10/16/14) at 521. The defense expe1i, Dr. William Welch, also 

Dr. Chyatte testified that cage migration is a known risk of anterior lumbar interbody 

N.T. (10/15/14) at 348. 

In my opinion, to within a reasonable degree of medical certainty, 

the operations of April 5th and April 14th did lead to permanent 

consequences for Mr. Gulla that it continued - - that include 

continued low back pain, left leg pain, and an L4 and/or LS 

distribution accompanied by weakness of his foot. And typically 

if a neurological deficit is present for two years in a patient of his 

age group, it is not something that is going to get better. 

Dr. Przybylski went on to state: 

N.T. (10/15/14) at 332. 

In my opinion, Dr. Chyatte deviated from the standard of care in the 

placement of the paired cages. The purpose of the cages is to safely 

sit within the perimeter footprint of the vertebral body. And all of 

the imaging that I reviewed revealed that the left-sided cage was not 

within that footprint and, in fact; was extraspinal, which led to its 

subsequent removal after the April 13th CT scan was done. 

Przybylski testified as follows: 

that essentially forms the basis for Plaintiffs' complaint. Plaintiffs' expert, Dr. Gregory J. 

anterior lumbar interbody fusion with the placement of two interbody cages. It is this surgery 

On April 5, 2005, Dr. Chyatte performed surgery on David Gulla consisting of an 

Birth Center, 787 A.2d at 383 quoting, Moure, 604 A.2d at 1007. 

minds could disagree that the outcome should have been rendered in favor of the movant. 

We may not vacate a jury's verdict unless "the evidence was such that no two reasonable 

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As in most medical malpractice cases, there was conflicting testimony presented by 

the experts. A jury "is free to accept or reject the credibility of both expert and lay witnesses, 

and to believe all, part or none of the evidence." Gunn v. Grossman, 748 A.2d 1235, 1240 

(Pa.Super. 2000) citing Gaydos v. Gaydos, 693 A.2d 1368 (Pa.Super. 1997). "The weight to 

be assigned to expert testimony lies within the province of the jury." Gunn 748 A.2d at 1240 

citing Flanagai1 v. Labe A.F.L. - C.I.O., 666 A.2d 333, 335 (Pa.Super. 1995). 

Plaintiffs allege that they are entitled to a judgment notwithstanding the verdict 

simply because the jury found Dr. Chyatte to be negligent. This allegation is not supported 

by the law. A jury is to decide whether a defendant's negligence was a substantial factor in 

bringing about an injury. Peterson v. Shreiner, 822 A.2d 833, 840 (Pa.Super. 2003). This 

principle applies to medical malpractice cases as well. "In a medical negligence case, as in 

negligence cases generally, the plaintiff has the burden of proving that the defendant's 

conduct was negligent, i.e., fell below the standard of care, and that the negligence was the 

factual cause of the injury to the plaintiff." Renna v. Schadt, 64 A.3d 658, 668 (Pa.Super. 

2013). A finding of negligence does not automatically result in a finding of factual cause. 

Our review of the evidence presented during trial does not lead us to conclude the verdict 

should have been rendered for Plaintiffs. It was certainly reasonable for the jury to find that 

although Dr. Chyatte was negligent, his negligence did not contribute to David Gulla's 

injuries. Because Plaintiffs were not entitled to a judgment as a matter of law, and it is 

impossible to find that the jury's verdict should have been in favor of Plaintiffs, their request 

for a judgment notwithstanding the verdict was properly denied. 

With regard to a motion for a new trial, the Pennsylvania Superior Court has 

summarized its scope of review as follows: 

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I Mano v. Madden, 738 A.2d 493, 495 (Pa.Super. 1999)(en bane). 

Where there is no dispute that the defendant is negligent and 

both parties' medical experts agree the accident caused some 

injury to the plaintiff, the jury may not find the defendant's 

negligence was not a substantial factor in bringing about at 

least some of plaintiffs injuries. See Neison v. Hines, 539 Pa. 

516, 521, 653 A.2d 634, 637 (1995); Mano1, supra. Compare 

Henery v. Shadle, 443 Pa.Super. 331, 661 A.2d 439 (1995), 

appeal denied, 542 Pa. 670, 668 A.2d 1133 (1995); Holland v. 

Zelnick, 329 Pa.Super. 469, 478 A.2d 885 (1984). Such a verdict 

is contrary to the weight of the evidence adduced at trial. See 

Neison, supra; Mano, supra. In other words, "a jury is entitled 

to reject any and all evidence up until the point at which the verdict 

is so disproportionate to the uncontested evidence as to defy common 

his teens, and its ongoing as he gets older." Id. 

"I think that Mr. Gulla, unfortunately, has degenerative changes that he's had since probably 

directly related to Dr. Chyatte's surgery. N.T. (10/17/14) at 620. Dr. Welch went on to state: 

not agree that Mr. Gulla's back and leg symptoms and permanency of the condition were 

problems for more then twenty years. Defendants' expert, Dr. Welch, testified that he did 

involved a spinal fusion of the L5-Sl. N.T. (10/14/14) at 132. He has suffered from back 

David Gulla's first back surgery took place inNovember, 1994. This surgery 

Johnson v. Hytmdai Motor America, 698 A.2d 631 (Pa.Super. 1997). 

decision to deny a new trial, that decision must be affirmed." Gunn, 7 48 A.2d at 123 9 citing 

1999)(en banc)(citations omitted). "If there is any support in the record for the trial court's 

Peterson, 822 A.2d at 836 citing Mano v. Madden, 738 A.2d 493, 495-96 (Pa.Super. 

The decision of whether to grant a new trial is within the sound 

discretion of the trial court. We will not disturb the trial court's 

decision unless the court palpably abused its discretion or committed 

an error law. In evaluating an order awarding a new trial, we keep 

in mind that a new trial is warranted where the jury's verdict is so 

contrary to the evidence as to shock one's sense of justice. However, 

a new trial should not be granted because of a mere conflict in 

testimony or because the trial judge, on the same facts, would have 

arrived at a different conclusion. 

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sense and logic." Neison, supra at 521, 653 A.2d at 637. 

Andrews v. Jackson, 800 A.2d 959, 962 (Pa.Super. 2002). 

If the medical experts testifying on behalf of both plaintiff and defendant disagree as 

to whether an alleged injury actually occurred, "it is not against the weight of the evidence 

for a jury to find that an injury did not occur." Kraner v. Kraner, 841 A.2d 141, 145 

(Pa.Super. 2004). A new trial is not warranted when a jury does not find the negligence of 

defendant to be a substantial factor in causing injury to plaintiff where the medical experts 

disagree that an alleged injury had occurred. Henery, 661 A.2d at 442. When medical 

experts disagree on whether an accident caused injury to the plaintiff, the jury is free to 

. accept the testimony of one expert and reject the testimony of the other. Kraner, 841 A~2d at ··· 

141 citing Holland v. Zelnick, 478 A.2d 885 (Pa.Super. 1984). 

It is highly likely that although the jury found Dr. Chyatte to be negligent, they did 

not find his negligence to be a factual cause due to Mr. Gulla's significant history of back 

problems. In no way was our sense of justice shocked by the verdict in this case. There is 

substantial support in the record for the jury's finding that Dr. Chyatte was negligent but his 

negligence was not a factual cause of Mr. Gulla's alleged injury. As a result, Plaintiffs' 

motion for a new trial was properly denied. 

Plaintiffs' third allegation of error is that the Court erred in allowing medical records 

containing hearsay to be published to the jury. At the start of trial, defense counsel objected 

to allowing the jury to see certain medical records which were to be admitted into evidence 

as joint exhibits. This objection was overruled. N.T. (10/14/14) at 15-19. 

"Medical records are admissible under the hearsay rules as evidence of facts 

contained therein but not as evidence of medical opinion or diagnosis." Turner v. Valley 

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As previously indicated, the medical records admitted into evidence and shown to the 

jury were joint exhibits which defense counsel initially attempted to move into evidence. 

N.T. (10/14/14) at 15. Both parties were permitted to use the exhibits and Plaintiffs make no 

specific allegation as to how they were prejudiced by their publication to the jury. Allowing 

the jury to view the medical _records admitted _ir1~0 evidence as joint exhibits was not error. 

Plaintiffs' final allegation of error concerns medical illustrations publicized to the 

jury as exhibits. Although Dr. Chyatte did not prepare the illustrations, he did provide the 

information to the medical illustrator for their preparation. Dr. Chyatte also testified that the 

illustrations were accurate depictions of ideal cage placement, the actual cage placement, and 

the location of the cages after Mr. Gulla underwent a second surgery. Id. at 107-109. 

In addressing the admissibility of evidence the Pennsylvania Superior Court has 

stated: "The admission or exclusion of evidence is within the sound discretion of the trial 

court, and in reviewing a challenge to the admissibility of evidence, we will only reverse a 

ruling by the trial court upon a showing that it abused its discretion or committed an error of 

law." McManamon v. Washko, 906 A.2d 1259, 1268 (Pa.Super. 2006) quoting B.K.v. J.K., 

823 A.2d 987, 991-92 (Pa.Super. 2003). An evidentiary ruling must be erroneous as well as 

harmful or prejudicial before it will amount to reversible error. Trnney Media Fuel, Inc. v. 

Toll Bros., 725 A.2d 836, 839 (Pa.Super. 1999). "The fundamental consideration in 

Housing Development Corp., 972 A.2d 531, 537 (Pa.Super. 2009) quoting Folger v. Dugan, 

876 A.2d 1049, 1055 (Pa.Super. 2005). Medical records may be introduced "as evidence of 

facts contained therein without producing the person who made the notation in the record or 

the record's custodian." Folger, 876 A.2d at 1056 citing Inre Indyk, 413 A.2d 371, 374 (Pa. 

1979). 

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illustrations were properly admitted into evidence and published to the jury at trial. 

effect and Dr. Chyatte sufficiently authenticated each illustration. As a result, the medical 

cages more understandable for the jury. Their relevance outweighed any potential prejudicial 

The medical illustrations were used by Defendants to make the placement of the 

Kopytin v. Aschinger, 947 A.2d 739, 747 (Pa.Super. 2008). 

Demonstrative evidence is "tendered for the purpose of rendering 

other evidence more comprehensible for the trier of fact." 2 McCormick 

on Evidence Section 212 (5th ed. 1999). "As in the admission of 

other evidence, a trial court may admit demonstrative evidence whose 

relevance outweighs any potential prejudicial effect." Commonwealth v. 

Serge, 586 Pa. 671, 896 A.2d 1170, 1177 (2006)(citation omitted). 

"Demonstrative evidence may be authenticated by testimony from a witness 

who has knowledge 'that a matter is what it claimed to be.'" Id. ( citing 

Pa.R.E. 901(b)(l)). 

represents that which it purports to depict." Pa.R.E. 901, Comment. 

sufficient to support a finding that the demonstrative evidence.fairly and accurately 

photographs, motion pictures, diagrams and models must be authenticated by evidence 

comment to Pennsylvania Rule of Evidence 901 provides: "Demonstrative evidence such as 

With regard to demonstrative evidence such as these medical illustrations, the 

cages at the time of the second surgery. 

proper placement of the cages, the actual placement location of the cages and location of the 

probable." Id. at 314. Clearly the medical illustrations were relevant since they showed the 

1997)( citations omitted). "Evidence is relevant if it tends to make a fact at issue more or less 

Santarlas v. Leaseway Motorcar Transport Co., 689 A.2d 311, 313-14 (Pa.Super. 

reviewing a trial court's decision regarding the admission of evidence is its relevance." 

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Copies To: 

Ralph Johnston, Jr., Esquire 

Charles E. Wasilefski, Esquire 

Donald F. Ladd, Esquire 

BY THE COURT: 

~ 7~l/cyj 

DATE: __ 6~-_G_-_5 / _ MICHAELT.VouGH, 1. 

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