J-A14008-24 

 

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37 

CHRISTOPHER MARAGOS 

 v. 

JAMES P. BRADLEY, UPMC 

COMMUNITY MEDICINE, INC. AND 

ROTHMAN ORTHOPAEDIC 

ASSOCIATES II, P.C. 

APPEAL OF: RECONSTRUCTIVE 

ORTHOPAEDIC ASSOCIATES, II, P.C. 

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 IN THE SUPERIOR COURT OF 

 PENNSYLVANIA 

 No. 2310 EDA 2023 

Appeal from the Judgment Entered August 1, 2023 

In the Court of Common Pleas of Philadelphia County Civil Division at 

No(s): 191100972 

BEFORE: LAZARUS, P.J., STABILE, J., and LANE, J. 

MEMORANDUM BY LAZARUS, P.J.: FILED AUGUST 30, 2024

 Reconstructive Orthopaedic Associates, II, P.C. (ROA)1 appeals from the 

judgment,2 entered in the Court of Common Pleas of Philadelphia County, on 

a $43.5 million jury verdict in favor of Appellee Christopher Maragos (Plaintiff) 

and against ROA and Defendants James P. Bradley, and UPMC Community 

____________________________________________ 

1

 Plaintiff filed his complaint against Rothman Orthopaedic Associates II, PC. 

However, on March 13, 2020, the parties stipulated to amend the caption of 

the complaint to reflect Defendant’s proper name, Reconstructive Orthopaedic 

Associates II, PC, hereinafter referred to as “ROA.” 

2 See Taxin v. Shoemaker, 799 A.2d 859 (Pa. Super. 2002) (order denying 

post-trial motions not appealable until order reduced to judgment). 
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Medicine, Inc., following the denial of post-trial motions.3 After careful 

consideration, we affirm on the basis of the well-reasoned opinion authored 

by the Honorable Charles J. Cunningham, III. 

 Plaintiff is a former NFL safety, special teams player, and team captain 

who signed a three-year/$4 million contract with the Philadelphia Eagles in 

2014.4 Plaintiff’s contract was extended in 2016 for three years/$6 million. 

Plaintiff was, at that time, the highest paid special teams player in the NFL. 

During an October 12, 2017 game against the Carolina Panthers, one of 

Plaintiff’s teammates collided with Plaintiff’s right knee, causing it to 

hyperextend.5 The next day, October 13, 2017, Plaintiff had an MRI taken in 

Philadelphia. See Jefferson Outpatient Imaging MRI Right Knee, 10/13/17, at 

1 (MRI Impression #3 states “[c]omplex tear of the posterior root attachment 

of the medial meniscus (new since 2015) with mild meniscal extrusion.”); see 

id. at 1-2 (MRI Medial Compartment notes “[t]here is a complex, 

predominantly radial tear involving the posterior root attachment of the medial 

____________________________________________ 

3

 The jury apportioned ROA’s liability at 33% of the full verdict, or 

$14,355,000.00. However, the court granted Plaintiff’s Pa.R.C.P. 238 motion 

for delay damages in the amount of $1,408,658.12, for a total recovery 

against ROA in the amount of $15,763,658.12. Additionally, although the jury 

also returned a verdict against Defendants Dr. James P. Bradley and 

Community Medicine, Inc., Plaintiff entered into a pro rata settlement 

agreement with Dr. Bradley and his practice, Community Medicine, Inc. 

4

 Plaintiff was selected as an alternate on the N.F.C. Pro Bowl team in 2014. 

5

 During the game, an x-ray was taken of Plaintiff’s right knee to rule out a 

fracture. 
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meniscus with a tiny 4 mm nondisplaced meniscal fragment. This tear is new 

since the prior MRI from meniscal extrusion.”). ROA and at-the-time Eagles 

head team physician, Dr. Peter DeLuca, reviewed the MRI results with Plaintiff 

and explained that Plaintiff had a complete tear of his posterior cruciate 

ligament (PCL), a partial tear of the lateral collateral ligament (LCL), and “a 

tear of the posterior horn root of the medical meniscus [with] mild extrusion” 

and recommended surgical intervention. See N.T. Jury Trial, 2/9/23, at 53, 

62-64. After consulting with his agent and team physician, Plaintiff selected 

Dr. Bradley, a Pittsburgh-based orthopedic sports medicine surgeon and head 

team physician for the Pittsburgh Steelers, to be his surgeon. 

Doctor Bradley talked to Dr. DeLuca the day before he operated on 

Plaintiff and told Dr. DeLuca that Plaintiff’s PCL was completely torn and that 

he was not sure if the meniscal root was torn, but that he would look at the 

root during the surgery to see if it needed to be fixed. Id. at 67. In particular, 

Dr. Bradley testified that Plaintiff had suffered a partial tear of the medial 

meniscus at the posterior horn that did not involve the meniscal root, a grade 

II LCL injury, and a completely ruptured PCL. Id., 2/7/23, at 156, 191. See 

also id. at 199, id., 2/8/23, at 100 (Doctor Bradley testifying Plaintiff had 

Type I “partial tear of the posterior horn of the root of [the] medial meniscus 

that was [] a partial tear”). 

On November 8, 2017, Dr. Bradley performed a right knee diagnostic 

arthroscopy and PCL reconstruction on Plaintiff’s right knee, reserving the 

decision as to whether the posterior lateral corner and the LCL had to be 
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repaired until Plaintiff was under anesthesia.6 Id., 2/7/23, at 192-93. Doctor 

Bradley specifically testified, after probing the area during surgery, the Type 

I partial root tear with which he had previously diagnosed Plaintiff did not 

require surgical intervention because it was a “stable tear.” Id., 2/8/23, at 

101-03; id., 2/7/23, at 200-01 (Doctor Bradley testifying Plaintiff’s root was 

“totally intact” during November 2017 surgery). 

Following surgery, Dr. Bradley ordered a course of physical therapy and 

rehabilitation for Plaintiff to take place in Philadelphia with ROA. See id. at 

103 (Doctor Bradley testifying he provided overview of rehab program for 

Plaintiff to trainers who would then implement day-to-day protocol). Initially, 

Plaintiff’s rehabilitative activities included muscle-strengthening exercises 

and, six weeks post-surgery, using a stationary bike. By January 2018, 

Plaintiff was walking unaided and putting his full body weight onto his knee. 

In conjunction with Dr. Bradley’s direction, ROA Doctors Peter DeLuca, 

Christopher Dodson,7 Paul Marchetto, and Matthew Pepe8 implemented and 

oversaw Plaintiff’s rehabilitation from November 2017 through December 

2018. See Deposition of James P. Bradley, M.D., 6/2/21, at 49 (“[I]t is a joint 

____________________________________________ 

6

 Doctor Bradley told Plaintiff he would assess whether he needed to fix his 

LCL during the surgery. See N.T. Jury Trial, 2/3/23, at 32. 

7

 Plaintiff originally named Drs. DeLuca and Dodson as individual Defendants, 

but withdrew them from the lawsuit shortly after filing the complaint. 

8

 All four doctors practiced at the Rothman Institute in 2017-2018. See N.T. 

Jury Trial, 2/9/23, at 169. 
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decision [among the ROA doctors and Philadelphia Eagles therapists/staff] and 

me when we should progress.”). Doctor DeLuca testified that he “took care 

of the [team’s] orthopedic injuries [and] made the final decisions when it came 

to orthopedic injuries.” N.T. Jury Trial, 2/9/23, at 54. Specifically, Dr. DeLuca 

testified that his day-to-day duties included evaluating injuries, reviewing 

MRIs, and making decisions regarding whether injured players could return to 

play. Id. at 55-56. 

Doctor Bradley reported back to Dr. DeLuca, post-surgery, that the 

meniscal root was completely stable and told Dr. DeLuca “specifically . . . not 

to examine [Plaintiff’s] knee [a]nd [that he didn’t] want [him] or any of [his] 

partners or any athletic trainer pulling on . . . the new PCL[.]” Id. at 68. In 

February 2018, Dr. DeLuca looked at Plaintiff’s range of motion, but did not 

test his PCL due to Dr. Bradley’s prior instructions. Id. at 72. 

Doctor Bradley examined Plaintiff in March 2018 and noted that 

Plaintiff’s reconstructed PCL was intact and that his MCL, LCL, and ligaments 

were healthy and stable. See N.T. Jury Trial, 2/3/23, at 45-46 (Plaintiff 

testifying Dr. Bradley told him “[h]e’s doing quite well[, that [the] PCL repair] 

was tight, it looked good and he was happy with it); but see id. at 45 (Plaintiff 

testifying he “just wasn’t quite feeling quite right[, he] was kind of getting 

swelling in that time and it was kind of concerning to [him].”); id. at 51 (“It 

was just swelling, like pinching, kind of [a] catching feeling in my knee.”). Dr. 

Bradley “significantly increased” Plaintiff’s activity level, id. at 47-49, and 

planned to see him again in two months. Plaintiff testified that his right knee 
J-A14008-24 

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“typically improv[ed]” after he took time off from exercising and strengthtraining. Id. at 50. Doctor DeLuca told Plaintiff that discomfort was normal 

and that he should “push through the discomfort.” Id. at 51-52. Around April 

11, 2018, Plaintiff reported that he was “feeling great” after running at 10 

MPH on 65% of his body weight, “but still ha[d] some pinching.” Id. at 53. 

On May 1, 2018, Plaintiff was unable to complete a lower body lift as part of 

his rehabilitative workout due to knee tightness, soreness, and fatigue. Id.

at 56. 

On May 10, 2018, while warming up in the weight room before a 

workout, Plaintiff twisted his knee and immediately felt “a jolt . . . in [his] 

knee and [a] pinching or catching [feeling.]” Id. at 59. Five days later, Dr. 

DeLuca ordered an MRI that showed “a little more extrusion of the meniscus[,] 

. . . no change in the [root] tear[,] a little more damage to the cartilage[,] 

and a [] bone bruise[.]” Id. at 79. Doctor Bradley prepared a diagnostic 

report of the MRI result, noting that Plaintiff has a posterior root tear, 

progressing arthritis, but that his graft looks “fine.” Id. at 62-63 (emphasis 

added). Doctor Bradley’s overall assessment noted, in part, that Plaintiff had 

“[p]rogressive medial compartment arthrosis [with] a root tear and 

meniscus is extruding and a PCL that is still healing.” MRI Report of Dr. 

James P. Bradley, 5/15/18, at 10 (emphasis added). Doctor Bradley did not 

tell Plaintiff that the extrusion had gotten worse since his surgery, “mention 

anything at all about the meniscus extruding, [] discuss the meniscus root 
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tear[, or] discuss the fact that [he] may need a surgery to repair [his] 

meniscus.” N.T. Jury Trial, 2/3/23, at 63-64. 

After examining Plaintiff and consulting with Dr. DeLuca, Dr. Bradley 

opined that Plaintiff’s arthritis was progressing in his knee and ordered a series 

of platelet-rich plasma (PRP) and Euflexxa injections to decrease 

inflammation. Id., 2/8/23, at 117, 119-120, 124. Doctor Bradley testified 

that after shutting Plaintiff’s rehabilitation down for a few months, he advised 

Plaintiff to “start to run [] on dry land [to] get him ready . . . to progress 

through camps and get him ready for the preseason.” See id. at 122; see 

also MRI Report of Dr. James P. Bradley, 5/15/18, at 10. 

On May 29, 2018, Plaintiff met with Dr. DeLuca, who had been 

overseeing his rehabilitation. Doctor DeLuca physically examined Plaintiff and 

administered another series of Euflexxa and PCP injections. N.T. Jury Trial, 

2/3/23, at 65-66. Doctor DeLuca did not discuss Plaintiff’s torn extruded 

meniscus with Plaintiff and continued to carry out Dr. Bradley’s protocol. Id.

at 67. Doctor DeLuca testified that, even when one of his players is operated 

on by a surgeon outside the organization, you don’t “abandon the player[, but 

you] butt in” if there is a problem. Id. at 69. Doctor DeLuca conducted a 

posterior exam of Plaintiff’s knee to test the PCL—the first physical 

examination Dr. DeLuca had done of Plaintiff’s knee since the November 2017 

surgery—and “got concerned that it was loose” and also looked like the 

meniscus had extruded more. Id. at 80. 
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Doctor DeLuca testified that he was surprised Plaintiff’s meniscus was 

not repaired during the initial surgery in November 2017 because he thought 

the root was torn; but, after reviewing the November 2017 intraoperative 

photograph prior to trial, Dr. DeLuca agreed with Dr. Bradley that Plaintiff’s 

meniscal root was not completely torn out of the bone and that it was stable. 

Id. at 107, 114-15. On recross-examination, however, Dr. DeLuca confirmed 

that: Plaintiff’s pre-operative October 2017 MRI showed he had a 4 mm 

extrusion; Plaintiff’s May 2018 MRI showed a 6 mm extrusion; and Plaintiff’s 

October 2018 MRI showed a 6 mm plus extrusion. Id., 2/9/24, at 120-21. 

On June 4, 2018, Plaintiff met with ROA’s Dr. Dodson, who assumed the 

role of Philadelphia Eagles head orthopedic surgeon in June 2018. Id. at 131-

32. Doctor Dodson administered Plaintiff’s third series of anti-inflammatory 

Euflexxa injections and performed a PRP procedure on him. Id. at 138-39. 

In addition, Dr. Dodson ordered Plaintiff to wear an unloader brace to alleviate 

pain. Id. at 140-44. At the time, Dr. Dodson knew that Plaintiff had a 

meniscal root tear that Dr. Bradley had not repaired, but testified that he later 

confirmed with Dr. Bradley that the root tear did not have to be repaired 

because it was stable. Id. at 141, 147; id., 2/3/23, at 176. 

During cross-examination of Dr. Dodson, Plaintiff’s counsel called into 

question discrepancies between Dr. Dodson’s transcribed patient notes and 

his Eagles Training Room Notes concerning Plaintiff, dated June 4, 2018 and 
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July 20, 2018, respectively.9 See N.T. Jury Trial, 2/9/23, at 171-184. Doctor 

Dodson testified that the Rothman Institute keeps a copy of his “draft notes” 

after he sees a patient and then “there [is] a separate set of notes at the 

Eagles training facility” that incorporate any changes he makes on the draft 

versions. Id. at 173. See also id. at 174 (Doctor Dodson testifying he is the 

only ROA doctor who “makes additions to [his] notes and [then] send[s] it 

off”). Doctor Dodson acknowledged that the confirmation codes on both sets 

of the training room notes are identical, signifying it is “[o]ne note” and not a 

separate note. Id. at 154. Due to the discrepancies, Plaintiff moved for an 

instruction regarding alteration of medical records, which the court gave to 

the jury. See N.T. Jury Trial, 2/13/23, at 24-25; see also 40 P.S. § 

1301.511(c);10 Pa.S.S.J.I, (Civ.) 14.40. 

____________________________________________ 

9 See Doctor Christopher Dodson Dictated Note 

(CCD.ram/vij/conf.#116762790), 6/4/18 (“[Plaintiff] told me he had a 

previous medial meniscus root repair at the time of surgery that was 

not repaired[,] but simply debrided.”) (emphasis added); but see Eagles 

Training Room Final Note (CCD.ram/vij/conf.#116762790), 6/4/18 (indicating 

post-PCL reconstruction, Plaintiff had “subtle twisting injury and had 

increasing pain on the inside of his knee [and] had a known root tear of his 

medial meniscus at the time of the surgery which is not addressed”) 

(emphasis added). See also Doctor Christopher Dodson Dictated Note 

(CCD/ram/vij/conf.#117341448), 7/20/18 (“[Plaintiff’s] meniscus 

extrusion is stable, but he has significant interval improvement of the 

subchondral bone marrow edema in the medial compartment.”); Eagles 

training Room Final Note (CCD/ram/vij/conf.#117341448), 7/20/18 

([“Plaintiff’s] meniscus extrusion is still present but stable. He has 

significant interval improvement of the subchondral bone marrow edema in 

the medial compartment.”) (emphasis added). 

10 Section 511(c) of MCARE states: 

(Footnote Continued Next Page) 
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Plaintiff testified that neither Dr. DeLuca nor Dr. Dodson ever considered 

or offered him the option of having his torn, extruded meniscus repaired, N.T. 

Jury Trial, 2/3/23, at 70, and that Dr. Dodson diagnosed him as having a 

“bone bruise,” and decided to “shut [Plaintiff] down” for a little over one 

month. Id. at 71. Plaintiff did not run or perform any rehabilitative activities 

so that the knee could heal, rest, and recover. Id. at 75. 

On July 20, 2018, at Dr. Dodson’s direction, Plaintiff underwent another 

MRI to see if the alleged bone bruise was healing. Id. at 82. Doctor Dodson 

met with Plaintiff and told him that the MRI showed that the bone bruise was 

healing and that he was “going to continue to have [Plaintiff] move forward” 

with rehabilitation. Id. at 83. Doctor Dodson did not mention the extruded 

meniscus or recommend surgery to repair the meniscus. Id. Plaintiff resumed 

his rehabilitation and, on August 8, 2018, saw Dr. Bradley11 who prescribed 

running on dry land. Id. Following a physical examination, Dr. Bradley told 

Plaintiff that his reconstructed PCL “looked great[,] . . . was solid [and that 

he] was happy with it.” Id. at 86. Plaintiff continued to complain of knee pain 

____________________________________________ 

Alteration of records--in any medical professional liability action in 

which the claimant proves by a preponderance of the evidence 

that there has been an intentional alteration or destruction of 

medical records, the court in its discretion may instruct the jury 

to consider whether such intentional alteration or destruction 

constitutes an adverse inference. 

40 P.S. § 1303.511(c). 

11 Plaintiff testified that Dr. Dodson and “some other people” were also at his 

appointment with Dr. Bradley. Id. at 84. 
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to Dr. Bradley who told him that the pain was from the nerve endings in his 

knee joint, that he had to continue to use the knee, and that “those things will 

numb off and you’ll be in less pain, you’ll get over it.” Id. at 88. 

In October 2018, Plaintiff met with ROA’s Dr. Pepe, concerned that he 

was unable to complete field workouts and “seeking other doctors[’ advice] 

trying to get answers on what was happening and what [he] was feeling.” Id.

at 93. Plaintiff visited Dr. Dodson again on October 12, 2018, due to his leg 

“locking [in a] straight [position].” Id. at 94-95. Doctor Dodson ordered 

another MRI which, according to Dr. Dodson, showed that the bone bruise was 

back and that his cartilage had significantly degenerated. Doctor Dodson 

recommended Plaintiff “shut down” all rehabilitative activities for another six 

to eight weeks to let the bruise heal. Id. at 95; id. at 2/9/23, at 170. 

Getting frustrated with his post-surgical lack of progress, in early 

December 2018 Plaintiff decided to meet with Dr. Robert LaPrade, a Colorado 

orthopedic surgeon who had been recommended as a potential surgeon for 

Plaintiff’s initial surgery. Doctor LaPrade told Plaintiff that the reconstruction 

of his PCL had “failed,” that his “knee was destroyed[, his] career was over at 

that point,” and that he needed surgery immediately to fix his rapidly 

deteriorating cartilage. Id. at 86, 97-98. 

In December 2018, Dr. LaPrade operated on Plaintiff, fixing his meniscus 

by performing an osteotomy, a procedure where a surgeon “medically 

break[s] your bone and [] shift[s] it to . . . take the pressure off the inside of 

your knee and transfer it to the outside of your knee[.]” Id. at 99. Plaintiff 
J-A14008-24 

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rehabbed for six months and, in July 2019, Dr. LaPrade performed another 

surgery, this time re-stabilizing Plaintiff’s right knee by completing a “revision 

double bundle PCL reconstruction with Achilles tendon.” See Report of

Matthew Lawrence Jiminez, M.D, 9/6/21, at 2. Plaintiff testified that, to this 

day, he still has daily pain in his knee and that “[t]he more [he does] on it, 

the more it hurts.” Id. at 104. 

On November 5, 2019, Plaintiff filed a professional liability action against 

Defendants Bradley, Burke & Bradley Orthopedics (B&B), and ROA. Plaintiff 

alleged that “[o]n or about May 10, 2018, an MRI of Plaintiff’s right knee 

revealed . . . a persistent partial tear at the posterior root of the medial 

meniscus and meniscus extrusion,” Plaintiff’s Complaint, 11/5/19, at ¶ 18, and 

that Dr. Bradley and the ROA doctors should not have advanced Plaintiff’s 

activity, but should have treated the knee “with an additional surgical repair.” 

Id. at ¶¶ 19-22. Plaintiff claims that, due to Defendants ignoring Plaintiff’s 

severe root tear without surgical intervention, his knee condition worsened 

and “hastened and contributed to the end of Plaintiff’s professional football 

career.” Id. at ¶ 25. 

With regard to ROA, the complaint alleged that ROA was negligent 

strictly under a theory of agency.12 See id. at ¶ 36 (“At all relevant times, 

____________________________________________ 

12 Appellees admit that their counsel misspoke when he stated at trial that 

“[t]here’s no vicarious claim here. This is a direct claim against Rothman.” 

In fact, the entirety of the trial against ROA proceeded solely on the theory of 

vicarious liability and the jury was instructed on that theory as well. See N.T. 

(Footnote Continued Next Page) 
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Rothman, by and through its employees servants and/or agents (actual, 

ostensible[,] or otherwise), had a duty to possess and apply the knowledge 

and to use the skill and care ordinarily used by reasonably careful orthopedic 

surgeon[s] and to be free from negligence.”); see also id. at ¶ 7 (“Each and 

every Defendant is vicariously liable for the acts and omissions of its 

employees, servants[,] and/or agents[,] actual, ostensible[,] or otherwise, 

each of whom was acting within the course and scope of the employment 

relationship.”). 

On the evening before jury selection, ROA filed an amended witness list 

to include Nicole Coleman, ROA’s vice-president of compliance and risk 

management. ROA intended to have Coleman testify regarding ROA’s 

document management procedures in an effort to rebut Plaintiff’s counsel’s 

suggestion on cross-examination that ROA physician, Dr. Dodson, had altered 

Plaintiff’s medical records. See supra at 8-9; supra at n.8. Plaintiff filed a 

motion to strike the late witness disclosure. The trial court entered an order 

on January 31, 2023, granting Plaintiff’s motion to strike and precluding 

____________________________________________ 

Jury Trial, 2/13/23, at 20 (“You must decide whether Dr. Bradley and/or the 

Rothman physicians were negligent. If you decide that the Defendants were 

negligent, then you must decide whether the Defendants’ negligence was a 

factual cause of Mr. Maragos’s injuries. If you so decide, you must decide the 

amount of damages that the Plaintiff sustained as a result of Defendants’ 

negligence”). Moreover, the parties stipulated as to the agency theory with 

regard to the ROA doctors as it applied to Defendant ROA. See N.T. Jury Trial, 

2/9/23, at 212. 
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Coleman from testifying at trial. See Order, 1/31/23. See also Pa.R.C.P. 

212.2.13

A jury trial was held over two weeks from the end of January 2022 

through mid-February 2023. Plaintiff’s expert in orthopedic surgery, Matthew 

Lawrence Jimenez, M.D., testified that as a result of Plaintiff’s collision during 

the October 2017 Panther’s game, Plaintiff suffered a root tear of the medial 

meniscus14 resulting in meniscal extrusion in his right knee.15 See N.T. Jury 

Trial, Vol. I, 1/30/23, at 70; see also Report of Matthew Lawrence Jiminez, 

M.D., 9/6/21, at 1 (“[A]n MRI to [Plaintiff’s] right knee [] revealed a meniscal 

____________________________________________ 

13 Rule 212.2(c) provides: 

Where the trial judge determines that unfair prejudice shall occur 

as a result of the non-compliance with subdivisions (a) and (b), 

the trial court shall grant appropriate relief which may include[:] 

(1) the preclusion or limitation of the testimony of 

(i) any witness whose identity is not disclosed in 

the pre-trial statement[.] 

Pa.R.C.P. 212.2(c). 

14 A meniscus root tear is a tear at the junction of the knee’s meniscus and 

bone. See https://www.mayoclinic.org/medical-professionals/orthopedicsurgery/news/advances-in-treatment-of-meniscus-root-tears/mac-20558318 

(last visited on 8/19/24). 

15 Doctor Jiminez compared Plaintiff’s October 13, 2017 MRI with the results 

of an MRI taken in September 2015, and noted that the 2015 MRI identified 

“a normal-appearing, intact meniscus with no abnormality, variant[,] or 

anomaly.” Report of Matthew Lawrence Jiminez, M.D., 9/6/21, at 2. 

Moreover, subsequent MRIs of Plaintiff’s right knee, taken in 10/2017, 5/2018, 

7/2018, and 10/2018, all showed a tear to the posterior root of the medial 

meniscus with extrusion. Id. at 3. 

 
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root tear with extrusion of the medial meniscus); id. at 2. Doctor Jiminez 

opined that the meniscal root was unstable because there was a 4mm 

extrusion and that an extrusion gets progressively worse as cartilage wears 

away over time. N.T. Jury Trial, Vol. I, 1/30/23, at 70 (“His PCL is repaired 

and remains stable nearly the entire rehab portion . . . [b]ut we saw right 

away from the first MRI the meniscus was extruded from day one, four 

millimeters[,] and continued to extrude over several months.”). Moreover, 

because of the instability due to the torn root, the meniscus “did not stay 

where it was supposed to be [and, thus, caused the] cartilage [to] w[ea]r 

out.” Id. at 71; id. at 72. Further, Dr. Jimenez opined that, to a reasonable 

degree of medical certainty, Dr. Bradley deviated from the professional 

standard of care by not repairing, in November 2017, Plaintiff’s torn medical 

meniscus root, and that the ROA doctors also breached that standard because 

they had an obligation as “orthopaedic surgeons caring for [Plaintiff to] talk to 

a surgeon [and] debate the care[,] look at the images, document that 

debate[,] and make a solid decision.” See id. at 73-74, 77; see also id. at 

97 (Doctor Jimenez testifying, “By seeing extrusion[—]you know instability[—

] . . . it is going to likely continue to extrude so the mandate is to, first, if you 

are not going to fix it with that MRI and that exam and that history, you [have] 

to spend a lot of time documenting why.”); id. at 98 (part of documenting 

issue is “testing the stability of the root aggressively to support” the decision 

not to repair root). Finally, Dr. Jimenez testified that without repairing a 

“complex” root tear like Plaintiff’s that involved “instability[,] it is not just 
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going to heal itself[,] you need to get stability back [and] have it firmly 

attached [so that it can] he[al].” Id. at 100. Doctor Jiminez’s expert report 

also noted that several radiologists16 confirmed that Plaintiff suffered a tear at 

the posterior root of his right knee’s medial meniscus with extrusion and that 

the size of the tear increased over time to approximately 6mm due to 

instability. See Report of Matthew Lawrence Jiminez, M.D., 9/6/21, at 3-4.17 

Following trial, the jury returned a verdict in favor of Plaintiff in the 

amount of $43.5 million, apportioning liability at 67% for Dr. Bradley and 33% 

____________________________________________ 

16 Radiologist Carolyn Boltin, M.D., Plaintiff’s expert, testified that, to a 

reasonable degree of medical certainty, Plaintiff’s October 2017 post-injury 

MRI showed that he suffered an extrusion of the medial meniscus from his 

incident, which included a complex root tear, and that over time, the degree 

of extrusion increased from mild to severe and that ultimately resulted in 

thinning and loss of cartilage. See N.T. Jury Trial, 2/1/23, at 40-54. 

17 Doctor Jiminez’ report noted that, in coming to his professional opinion on 

the matter, he had “examined [Plaintiff], reviewed the medical records, 

radiology and corresponding reports, intraoperative images and video (where 

available), deposition transcripts[,] and [] other materials.” See Matthew 

Lawrence Jiminez, M.D., Report, 9/6/21, at 1. Doctor Jiminez ultimately 

concluded that Dr. Bradley and the ROA doctors were “grossly negligent” and 

breached the standard of care where they failed to: “inform [Plaintiff] that he 

suffered the meniscal root tear[;] offer to scope his knee to investigate 

further[; and inform him] of the potential risks associated with training, 

rehabilitation[,] and running on a knee with a known root tear with meniscal 

extrusion.” Id. at 9. Doctor Jiminez opined that the standard of care required 

Dr. Bradley and the ROA doctors “to restrict [Plaintiff’s] rehabilitation to 

range-of-motion exercises and light activity [and] refrain from ordering and 

implementing rehabilitation involving significant weightbearing or loading 

exercises until the root tear . . . was addressed.” Id. at 6. Doctor Jiminez 

opined that Defendants’ breach caused Plaintiff to suffer “unnecessary and 

unreasonable pain[, led to] his inability to play NFL football, [and] w[as] a 

substantial factor in [Plaintiff] needing [two] future total knee 

replacement[s].” Id. at 9-10. 
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for ROA. On February 23, 2023, ROA filed a post-trial motion seeking a 

judgment notwithstanding the verdict (JNOV), a new trial on all issues, a new 

trial on damages, and remittitur of the jury’s verdict. The trial court denied 

ROA’s post-trial motions. 

 ROA filed a timely notice of appeal and court-ordered Pa.R.A.P. 1925(b) 

concise statement of errors complained of on appeal. ROA presents the 

following issues for our consideration: 

(1) Whether the trial court erred in denying Defendant ROA’s 

request for JNOV, where Plaintiff only sued ROA for vicarious 

liability[,] but failed to prove that any agent or employee of 

Defendant [ROA] breached an objective standard of care 

that caused Plaintiff’s harm? 

(2) Whether the trial court erred and/or abused its discretion 

when it gave the jury a spoliation/adverse inference 

instruction when there was no evidence that any document 

had been spoliated or improperly altered, Plaintiff failed to 

satisfy the strict standard for a spoliation/alteration 

instruction, and Defendant ROA suffered undue prejudice 

because the instruction improperly invited and permitted 

the jury to find, without any basis, that ROA spoliated 

evidence?[18]

(3) Whether the trial court abused its discretion in denying 

Defendant [ROA’s] new trial request after the trial court 

improperly, and to Defendant [ROA’s] great prejudice, 

precluded a defense witness from testifying in a manner that 

would have rebutted accusations that Defendant [ROA] had 

improperly “altered” documents and engaged in a “coverup,” where the proposed testimony would have been 

____________________________________________ 

18 An appellate court “review[s a] trial court’s jury instructions for an abuse of 

discretion or legal error controlling the outcome of the case.” Cragle v. 

O’Brien, 225 A.3d 182, 190 (Pa. Super. 2019) (citations omitted). 
J-A14008-24 

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succinct and circumscribed and Plaintiff failed to prove any 

undue prejudice from the admission of the testimony?[19]

(4) Whether the trial court erred and/or abused its discretion in 

denying Defendant ROA’s motion for [a] new trial, a new 

trial on damages, or at least a substantial remittitur, where 

the jury’s determination of liability and causation was 

against the overwhelming weight of the evidence, and the 

$43,500,000[.00] damages award was excessive, unfair[,] 

and likely driven by Plaintiff’s incendiary claim of a “cover 

up”?[20]

____________________________________________ 

19 In determining whether to preclude the testimony of a witness who has not 

been identified in a pre-trial statement, our courts have considered: 

(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 v. S.E. Pennsylvania Transp. Auth., 517 A.2d 1270, 1273 (Pa. 

1986) (citations omitted). 

20 In Tindall v. Friedman, 970 A.2d 1159 (Pa. Super. 2009), our Court 

stated: 

Our standard of review in reversing an order denying a remittitur 

by a trial court is confined to determining whether there was an 

abuse of discretion or an error of law committed in such denial. 

Smalls v. Pittsburgh-Corning Corp., [] 843 A.2d 410, 414 (Pa. 

Super. 2004). 

The grant or refusal of a new trial because of the excessiveness of 

the verdict is within the discretion of the trial court. Hall v. 

George, [] 170 A.2d 367 ([Pa.] 1961). This court will not find a 

verdict excessive unless it is so grossly excessive as to shock our 

sense of justice. Kravinsky v. Glover, [] 396 A.2d 1349 [(Pa. 

Super.] 1979). We begin with the premise that large verdicts are 

not necessarily excessive verdicts. Each case is unique and 

dependent on its own special circumstances and a court should 

(Footnote Continued Next Page) 
J-A14008-24 

- 19 - 

Appellant’s Brief, at 5-6. 

In Scampone v. Highland Park Care Ctr., LLC, 57 A.3d 582 (Pa. 

2012), our Supreme Court discussed the concept of vicarious liability in the 

context of a medical malpractice action: 

To prove negligence, a plaintiff may proceed against a defendant 

on theories of direct and vicarious liability, asserted either 

concomitantly or alternately. Liability for negligent injury is direct 

when the plaintiff seeks to hold the defendant responsible for 

harm the defendant caused by the breach of a duty owing directly 

to the plaintiff. By comparison, vicarious liability is a policy-based 

allocation of risk. Vicarious liability, sometimes referred to as 

imputed negligence, means in its simplest form that, by reason of 

some relation existing between A and B, the negligence of A is to 

be charged against B although B has played no part in it, has done 

nothing whatever to aid or encourage it, or indeed has done all 

that he possibly can to prevent it. Once the requisite relationship 

(i.e., employment, agency) is demonstrated, the innocent victim 

has recourse against the principal, even if the ultimately 

responsible agent is unavailable or lacks the ability to pay. 

Mamalis v. Atlas Van Lines, Inc., [] 560 A.2d 1380, 1383 (Pa. 

1989); accord Crowell [v. City of Philadelphia], 613 A.2d 

[1178,] 1182 [(Pa. 1992)] (vicarious liability is policy response to 

“specific need” of how to fully compensate victim). 

Where a corporation is concerned, the ready distinction between 

direct and vicarious liability is somewhat obscured because we 

accept the general premise that the corporation acts through its 

officers, employees, and other agents. See Tayar v. Camelback 

Ski Corp., Inc., [] 47 A.3d 1190, 1196 (Pa. 2012). The 

corporation, as principal, assumes the risk of individual agents’ 

negligence under the theory of vicarious liability. See, e.g., 

Iandiorio v. Kriss & Senko Enters., Inc., [] 517 A.2d 530 (Pa. 

1986); Aiello v. Ed Saxe Real Estate, Inc., [] 499 A.2d 282 (Pa. 

____________________________________________ 

apply only those factors which it finds to be relevant in 

determining whether or not the verdict is excessive. Mineo v. 

Tancini, [] 502 A.2d 1300 ([Pa. Super.] 1986). 

Id. at 1176-77 (citations and ellipsis omitted). 
J-A14008-24 

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1985). In this scenario, the corporation’s liability is derivative of 

the agents’ breach of their duties of care to the plaintiff. But, this 

Court has also recognized that a corporation may also owe duties 

of care directly to a plaintiff, separate from those of its individual 

agents, such as duties to maintain safe facilities [] and to hire and 

oversee competent staff. See, e.g., Thompson [v. Nason 

Hospital, 591 A.2d 703 (Pa. 1991)] (corporate hospital owed 

patient non-delegable duty of care to enforce consultation and 

patient monitoring policies); Gilbert v. Korvette, Inc., [] 327 

A.2d 94, 102 (Pa. 1974) (corporation owed customer nondelegable duty of care to maintain premises); Dempsey v. Walso 

Bureau, Inc., [] 246 A.2d 418 (Pa. 1968) (corporation owed 

employee duty of reasonable care in hiring other employees); 

accord Atcovitz v. Gulph Mills Tennis Club, Inc., [] 812 A.2d 

1218 (Pa. 2002) (if duty exists, corporation may be held directly 

liable for negligence). Accordingly, as a general proposition, the 

recognition that a corporation acts through its agents has not been 

held to be a fatal impediment to ha[i]ling a corporation into court 

on direct liability tort claims. Accord Mamalis, 560 A.2d at 1383 

(“termination of the claim against the agent extinguishes the 

derivative [vicarious liability] claim against the principal” but not 

separate claim based on principal’s “affirmative act or failure to 

act when required to do so”). 

Scampone, 57 A.3d at 597-98 (some internal citations and quotation marks 

omitted).21

 After a comprehensive review of the parties’ briefs, certified record on 

appeal, and the relevant case law and statutes, we affirm on the basis of Judge 

Cunningham’s opinion. See Trial Court Opinion, 12/19/23, at 7 (court 

properly denied JNOV where Dr. Jiminez testified, to reasonable degree of 

____________________________________________ 

21 To the extent that ROA claims, based on the wording of the verdict slip, 

Plaintiff failed to obtain a finding that any ROA agent or employee was 

negligent because it only listed Rothman and not the individual Rothman 

doctors, we find that this claim has been waived where defense counsel agreed 

to the wording of the verdict slip. See N.T. Jury Trial, 2/9/23, at 208 (“[THE 

COURT:] You’re okay with the Plaintiff’s verdict slip? [DEFENSE COUNSEL:] 

Yes.”). 
J-A14008-24 

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medical certainty, Plaintiff’s meniscus tear should have been surgically 

repaired in initial surgery, intense exercise on unrepaired tear led to further 

damage to meniscus and entire knee, no rehabilitation should have occurred 

until meniscus repaired, ROA doctors who supervised and continued to 

encourage rehabilitation on Plaintiff’s knee over complaints of pain and 

discomfort violated standard of care); id. at 9 (Medical Care Availability and 

Reduction of Error (MCARE) alteration of records instruction properly given 

where testimony showed substantive and material differences between Dr. 

Dodson’s draft notes and transcribed Eagles notes); id. at 9 (Coleman 

properly precluded from testifying where non-expert witness identified on eve 

of jury selection, Plaintiff had no time to depose Coleman, and no reason why 

ROA could not have identified witness sooner); id. at 10-11 (verdict not 

against weight of evidence where jury chose to believe Dr. Jiminez’s testimony 

that ROA defendants, as agents, increased risk of harm to Plaintiff by 

continuing to rehabilitate him); and id. at 11 (new trial not warranted on basis 

of excessive verdict where record evidence established Plaintiff was highly 

esteemed and paid NFL player projected to secure future contract and noneconomic damages difficult to quantify). We instruct the parties to attach a 

copy of Judge Cunningham’s decision in the event of further proceedings in 

the matter. 

 Judgment affirmed. 
J-A14008-24 

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Date: 8/30/2024 
Circulated 08/20/2024 09:50 AM