J-A11014-19

2020 PA Super 172

ELIZABETH H. LAGEMAN, BY AND 

THROUGH HER POWER OF ATTORNEY 

AND DAUGHTER, ADRIENNE LAGEMAN

IN THE SUPERIOR COURT

OF PENNSYLVANIA

Appellant

v.

JOHN ZEPP, IV, D.O.; ANESTHESIA

ASSOCIATES OF YORK, PA, INC.; YORK 

HOSPITAL; AND WELLSPAN HEALTH, 

T/D/B/A YORK HOSPITAL

Appellee No. 756 MDA 2018

Appeal from the Judgment Entered May 10, 2018

In the Court of Common Pleas of York County

Civil Division at No: 2014-SU-000846-82

BEFORE: BOWES, OLSON, and STABILE, JJ.

DISSENTING OPINION BY STABILE, J.: FILED JULY 20, 2020

The Majority concludes that a new trial is warranted because the trial 

court abused its discretion by refusing to deliver a res ipsa loquitur instruction 

and by permitting the defense to use a demonstrative mannequin during trial. 

A res ipsa loquitur instruction properly was denied where Appellant presented 

direct evidence of negligence thereby obviating the need to rely upon the aid 

of an inference of negligence provided by a res ipsa loquitur instruction. The 

instruction was also properly denied where the record does not support a 

finding that any expert unequivocally testified Appellant’s harm does not 

ordinarily occur in the absence of negligence. I further believe the trial court 

did not abuse its discretion by permitting the defense use of a demonstrative 
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mannequin where it was the trial court’s judgment such use aided the jury in 

understanding the medical issue in this case. I respectfully dissent.

As this Court explained in D’Ardenne v. Strawbridge & Clothier, 

Inc., 712 A.2d 318 (Pa. Super. 1998), “Where there is no direct evidence

to show cause of the injury, and the circumstantial evidence indicates that the 

negligence of the defendant is the most plausible explanation for the injury, 

the [res ipsa loquitur] doctrine applies.” Id. at 321 (quoting Prosser & Keeton 

on the Law of Torts § 40, at 257 (5th ed. 1984) (emphasis added, additional 

citation omitted)). Because this was a case with direct evidence of Dr. Zepp’s 

negligence, I find this case did not warrant a res ipsa loquitur instruction. 

In Toogood v. Rogal, 824 A.2d 1140 (Pa. 2003) (plurality), Justice 

Newman explained: 

Res ipsa loquitur is neither a doctrine of substantive law nor a 

theory of recovery; rather, it is a rule of circumstantial 

evidence. Nor is this doctrine to be employed simply because 

the treatment caused injury or failed to yield the expected result. 

Courts have continually stated that an injury alone is insufficient 

to prove negligence in medical malpractice cases.

The doctrine of res ipsa loquitur allows plaintiffs, without direct 

evidence of the elements of negligence, to present their case 

to the jury based on an inference of negligence. The key to the 

doctrine is that a sufficient fund of common knowledge exists 

within a jury of laypersons to justify raising the inference. 

Instead of directly proving the elements of ordinary 

negligence, the plaintiff provides evidence of facts and 

circumstances surrounding his injury that make the 

inference of the defendant’s negligence reasonable. “The 

gist of res ipsa loquitur . . . is the inference, or process of 

reasoning by which the conclusion is reached. This must be based 

upon the evidence given, together with a sufficient background of 

human experience to justify the conclusion. It is not enough 
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that plaintiff’s counsel can suggest a possibility of 

negligence.” Prosser & Keeton, The Law of Torts § 39, p. 243 

(5th ed. 1995). This theory relieves the plaintiff of having 

to prove causation directly.

Id. at 1146 (emphasis added).

Justice Newman also provided historical perspective on the application 

of res ipsa loquitur in Pennsylvania, noting § 328D of the Restatement 

(Second) of Torts first was adopted in Gilbert v. Korvette, Inc., 327 A.2d 

94 (Pa. 1974), and extended to medical malpractice cases in Jones v. 

Harrisburg Polyclinic Hosp., 437 A.2d 1134 (Pa. 1981), where both parties 

presented expert testimony, but the plaintiff’s expert causation testimony was 

deficient. Toogood, 824 A.2d at 1147-48. Concluding that expert medical 

testimony should no longer be a requirement in all medical malpractice cases, 

the Jones Court announced: 

Section 328D is fashioned to reach all instances where negligence 

may properly be inferred and its applicability is not necessarily 

precluded because the negligence relates to a medical procedure. 

The section establishes criteria for determining circumstances 

wherein the evidentiary rule of res ipsa loquitur may become 

operative in providing the inference of negligence. It is premised 

upon a recognition that certain factual situations demand such an 

inference.

***

[S]ection 328D provides two avenues to avoid the production 

of direct medical evidence of the facts establishing liability: 

one being the reliance upon common lay knowledge that the 

event would not have occurred without negligence, and the 

second, the reliance upon [expert] medical knowledge that the 

event would not have occurred without negligence.

Jones, 437 A.2d at 1138 (emphasis added).
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The evidentiary rule of res ipsa loquitur, which permits an inference of 

negligence where direct evidence is not capable of being produced, is justified 

upon the rationale that certain cases demand such an inference because some 

events simply do not occur in the absence of negligence. Where, however, a 

plaintiff is capable of introducing direct evidence of negligence and resulting 

harm, there is no need to invoke an inference to bridge the gap between the 

harm suffered and the antecedent negligent act. To do so allows a plaintiff to 

present direct evidence of negligence and then have the court instruct a jury 

that the direct evidence is entitled to an inference of negligence. Doing so 

impermissibly bolsters a plaintiff’s direct proof and imparts an imprimatur of 

liability by the court to a direct case of proof. It also is inconsistent in my 

view to both instruct a jury to weigh a plaintiff’s direct proof of negligence and 

instruct them negligence may be inferred because the event ordinarily does 

not occur in the absence of negligence. In essence, on the one hand, a jury 

is told to consider the direct evidence, but then on the other hand, is told that 

because there is no direct evidence of negligence they may employ an 

inference of negligence that may be rebutted by the defense. Simply stated, 

the aid offered by a res ipsa loquitur instruction to infer negligence when direct 

proof is not available—but when the circumstances of a case compel such an 

inference, is simply not necessary when a plaintiff is capable of identifying and 

producing direct evidence of negligence, such as in the instant case. 

Moreover, expanding res ipsa loquitur to cases like that presently before us 
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would virtually guarantee precedent that the charge may be given in every 

malpractice case despite direct proof of negligence. The purpose of the rule 

would be completely lost in translation.

I believe my review of cases comports with the application of res ispa 

loquitur in this Commonwealth as applied in medical malpractice cases. 

The Jones Court recognized two such instances where the inference 

allowed by res ipsa loquitur is permitted. This first “avenue” is traveled in 

cases that rely on common lay knowledge. For example, Fessenden v. 

Robert Packer Hosp., 97 A.3d 1225 (Pa. Super. 2014), a “proverbial ‘sponge 

left behind’ case,” reflects the prototypical application of res ipsa loquitur. Id.

at 1233 (citing Jones, 437 A.2d at 1138 n. 11) (“[T]here are other kinds of 

medical malpractice, as where a sponge is left in the plaintiff’s abdomen after 

an operation, where no expert is needed to tell the jury that such events do 

not usually occur in the absence of negligence.”); Robinson v. Wirts, 127 

A.2d 706, 710 (Pa. 1956) (stating that no expert testimony is necessary in 

“cases where . . . a gauze pad is left in the body of a patient following an 

operation”)). As we explained in Fessenden:

A narrow exception to the requirement that medical malpractice 

claims be supported by expert testimony applies in instances of 

obvious negligence, i.e., circumstances in which the medical and 

factual issues presented are such that a lay juror could recognize 

negligence just as well as any expert. Jones[, 437 A.2d at 1137]. 

In such instances, the doctrine of res ipsa loquitur allows a factfinder to infer from the circumstances surrounding the injury that 

the harm suffered was caused by the negligence of the defendant. 

Fessenden, 97 A.3d at 1230.
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Although there was no item left behind in Quinby v. Plumsteadville 

Family Practice, Inc., 907 A.2d 1061 (Pa. 2006), a res ipsa instruction was 

similarly warranted. In Quinby, a paraplegic was left unaccompanied and 

unrestrained on an examination table in a medical office following removal of 

a lesion from his left temple. He fell from the table and sustained injuries that 

purportedly resulted in his death. There was no explanation for Quinby’s fall 

beyond the medical practice’s negligence. Because “the fall is not the type of 

event that occurs in the absence of negligence, and [] there is no explanation 

other than [the practice’s] negligence for the fall,” the trial court should have 

charged the jury on the doctrine of res ipsa loquitur. Quinby, 907 A.2d at 

1073. 

As the Court observed in Quinby, 

Upon close analysis, it is apparent that res ipsa loquitur provides 

no assistance to a plaintiff’s obligation to demonstrate a 

defendant’s duty, that a breach of that duty was a substantial 

factor in causing plaintiff harm, or that such harm resulted in 

actual damages. However, res ipsa loquitur does aid a 

plaintiff in proving a breach of duty. While res ipsa loquitur is 

useful in this limited regard, case law universally refers to res ipsa 

loquitur as raising an inference of “negligence” rather than an 

inference of “breach of duty.” 

Id. at 1071 n.15 (emphasis added). While the Court indicated it would “abide 

by this typical nomenclature and refer to res ipsa loquitur as ‘raising an 

inference of negligence[,]’” its comment is instructive in recognizing which 

element of a prima facie case of negligence is at issue when examining 

application of the doctrine. 
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With respect to the second “avenue” referenced in Jones, that avenue 

is available in certain cases that involve more complex factual scenarios and 

require expert testimony. Again, absent direct evidence of negligence, res 

ipsa permits an inference of negligence if the evidence, coupled with “sufficient 

background of experience,” justifies the conclusion. See Prosser & Keeton, 

The Law of Torts § 39, p. 243 (5th ed. 1995). The sponge left in the abdomen 

is the prototypical example. However, in a case involving complex medical 

issues that are not within the jury’s common fund of knowledge, the plaintiff 

can attempt to establish a res ipsa case through expert testimony indicating, 

inter alia, that the event at issue would not ordinarily occur in the absence of 

negligence. Stated differently, if a plaintiff does not have expert testimony to 

establish a prima facie case of negligence based on direct evidence, then—

and only then—does the question arise as to whether res ipsa should apply. 

In the absence of direct evidence of negligence, the jury can then weigh the 

plaintiff’s “indirect,” i.e., circumstantial, evidence of negligence in conjunction 

with the expert’s opinion that the event would not occur in the absence of 

negligence. The jury would then be in a position to use the res ipsa inference 

of negligence when deciding whether the plaintiff has proven a case by a 

preponderance of the evidence, assuming the remaining two elements of 

§ 328D(1) are similarly satisfied. However, that inference should be available

only in cases where there is no direct evidence of negligence. Allowing it in 

instances when the plaintiff has established a prima facie case of negligence 
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supported by direct evidence would, as noted above, virtually guarantee 

precedent that the charge may be given in every malpractice case despite 

direct proof of negligence. 

Our Supreme Court has considered the application of res ipsa loquitur 

in complex medical cases that are outside a jury’s common fund of knowledge. 

For example, in Jones, the plaintiff experienced suprascapular nerve palsy, 

i.e., intense pain in her neck, shoulder and arm, following a gynecological 

procedure. Jones filed suit claiming negligence and a jury found her surgeon 

negligent based on res ipsa loquitur. The trial court denied the surgeon’s posttrial motions. On appeal, this Court determined the case warranted a res ipsa 

loquitur analysis, despite plaintiff’s inability to “aver the precise conduct of the 

named defendants because she was unconscious during treatment, although 

the circumstantial evidence points toward the negligence of one of more of 

the parties sued.” Jones v. Harrisburg Polyclinic Hosp., 410 A.2d 303, 

306 (Pa. Super. 1979), rev’d, Jones, 437 A.2d 1134 (Pa. 1981). This Court 

nevertheless reversed and granted the surgeon a new trial, finding a res ipsa

loquitur instruction was not warranted because the plaintiff had not eliminated 

other responsible causes as required under § 328D(1)(b). 

The Supreme Court reversed our decision, concluding the plaintiff was 

entitled to an inference of negligence in light of uncontradicted expert 

testimony that surprascapular nerve palsy does not ordinarily occur during 

gynecological procedures in the absence of negligence. Jones, 437 A.2d at 
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1139. The Supreme Court also rejected this Court’s analysis of § 328D(1)(b), 

stating the subsection does not preclude joint responsibility. Therefore, it is 

not necessary for a plaintiff to “eliminate the ‘responsible cause’ of one in 

order for the requirements of section 328D(1)(b) to be met as to the other.” 

Jones, 437 A.2d at 1140. 

As reflected in the above-quoted language from this Court’s opinion, 

there is no suggestion Jones presented any direct, rather than circumstantial, 

evidence of negligence on the part of the surgeon. The lack of direct evidence 

is further corroborated by the Supreme Court’s statement that “[t]he theories 

of liability asserted against [the surgeon] were those of lack of informed 

consent and negligence, through the application of the rule of res ipsa loquitur. 

The jury rejected the lack of informed consent theory in reaching its verdict 

against [the surgeon].” Id. at 1136. 

In Hightower-Warren v. Silk, 698 A.2d 52 (Pa. 1997), the plaintiffs’ 

decedent underwent total removal of her thyroid. She subsequently 

experienced hoarseness that was attributed to paralysis of her vocal cord. The 

trial court initially entered a nonsuit, finding she could not proceed to the jury 

on the basis of res ipsa loquitur because her expert’s testimony “was too 

speculative to establish a causal connection between [defendant’s] surgical 

treatment and [decedent’s] vocal cord paralysis.” Id. at 53. Plaintiffs 

requested a new trial, contending their expert’s testimony was sufficient to 

proceed under a theory of res ipsa loquitur. The trial court denied plaintiffs’ 
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motion, ruling that the expert’s testimony failed to satisfy either of the first 

two elements of § 328D. We affirmed the trial court’s ruling. The Supreme 

Court reversed, finding that this Court erred in failing to follow the non-suit 

standard1 and that plaintiffs satisfied all three elements of § 328D. Therefore, 

plaintiffs were entitled to proceed to the jury under the res ipsa doctrine. 

While it is not clear whether plaintiffs initially pursued any claims based on 

direct evidence of negligence, it is clear that the case was sent back to the 

trial court to proceed on a res ipsa loquitur theory only. 

A common thread between Jones and Hightower-Warren is the fact 

the claimed injury involved a part of the body that was not directly involved 

in the patient’s surgical procedure. In each case, the plaintiff introduced some 

evidence suggesting, but not directly proving, causation. In D’Ardenne, this 

Court characterized such evidence as falling into a “grey zone,” noting 

“Pennsylvania courts have thus concluded that where the evidence in the case 

falls within the grey zone, a factual realm in which a plaintiff presents as 

____________________________________________

1 Unlike the case before us, which involves an abuse of discretion standard of 

review, Hightower-Warren was an appeal from the entry of non-suit. 

It is well-established that a compulsory non-suit may be entered 

only when the plaintiff cannot recover under any view of the 

evidence, with every doubt resolved against its entry and all 

inferences drawn most favorably to the plaintiff. Moreover, a 

plaintiff must be given the benefit of all favorable testimony and 

all reasonable inferences drawn therefrom. 

Hightower-Warren, 698 A.2d at 54 (quotation and citation omitted).
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specific a case of negligence as possible, yet is unable to demonstrate the 

exact cause of the accident, plaintiff is entitled to a res ipsa loquitur charge.” 

D’Ardenne, 712 A.2d 324-25 (emphasis in original, internal citations and 

quotations omitted). 

This Court discussed evidence falling in the “grey zone” in Smith v. City 

of Chester, 515 A.2d 303, 306 (Pa. Super. 1986), noting:

While it is true that a res ipsa loquitur instruction is not warranted 

in the face of clear and indubitable proof of negligence, it is also 

true that a res ipsa loquitur charge is appropriate where the facts 

of a case lie somewhere in a grey zone “between the case in which 

the plaintiff brings in no evidence of specific acts of negligence, 

and therefore must rely on the res ipsa loquitur inference alone, 

and the case in which the defendant’s negligence ‘can be clearly 

and indubitably ascertained’ from the plaintiff's evidence, Farley 

v. Philadelphia Traction Company, 132 Pa. 58, 18 A. 1090 

(1890), and therefore the plaintiff need not rely on the res ipsa 

loquitur inference at all.” Hollywood Shop, Inc. v. Pa. Gas & 

Water Co., 270 Pa. Super. 245, 252–53, 411 A.2d 509, 513 

(1979). 

Id. at 306 (Pa. Super. 1986) (emphasis in original). Here, the evidence can 

be clearly and indubitably ascertained through Dr. Pepple’s expert testimony 

that Dr. Zepp negligently inserted a central venous pressure (“CVP”) line 

causing Mrs. Lageman’s arterial cannulation, in turn causing her stroke. 

Therefore, this is not a case where the evidence falls into the grey zone. Mrs. 
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Lageman did not need to rely on, and was not entitled to, a res ipsa loquitur 

inference and charge.2 

In MacNutt v. Temple University Hospital, Inc., 932 A.2d 980, 986 

(Pa. Super. 2007) (en banc), the plaintiff claimed he suffered a chemical burn 

to his shoulder during surgery to treat his thoracic outlet syndrome. The 

defense presented testimony suggesting plaintiff had shingles, not a chemical 

burn. The trial court precluded plaintiffs from proceeding on the theory of res 

ipsa loquitur because plaintiffs “had produced adequate evidence to support a 

cause of action based on a standard theory of negligence without relying on a 

theory of res ipsa loquitur.” Id. at 984 (quoting Trial Court Opinion, 6/24/15, 

at 1-2). On appeal, we affirmed, holding that the trial court “properly 

precluded [plaintiffs] from presenting their case at trial under the res ipsa 

loquitur doctrine.” Id. at 983. 

____________________________________________

2 The Majority suggests our Supreme Court sanctioned giving a res ipsa charge 

in Quinby despite “sufficient direct evidence of negligence from plaintiff’s 

expert to make out a prima facie case[.]” Majority Opinion at 28 (emphasis 

added). However, that Court recognized that res ipsa is a “simple matter of 

circumstantial evidence.” Quinby, 907 A.2d at 1071 (quoting WILLIAM L. 

PROSSER, LAW OF TORTS §§ 39, 40 (4th ed.1971). I submit the evidence of 

negligence in Quinby was circumstantial, not direct. A quadriplegic was left 

unattended on an examination table—either on his side or on his back—and 

fell to the floor. No one observed the fall and no one could explain how or 

why he fell from the table. Dissimilarly here, Dr. Zepp admitted that he 

inserted the CVP line through its intended destination—the jugular vein—and 

into the carotid artery. The question was simply whether he was negligent for 

doing so. Despite direct evidence of the errant location of the catheter, the 

jury concluded he was not negligent.
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This Court once again recognized, “The doctrine of res ipsa loquitur is a 

rule of circumstantial evidence which allows plaintiffs, without direct 

evidence of the elements of negligence, to present their case to the jury 

based on an inference of negligence.” Id. at 986 (emphasis added). Not only 

was there direct evidence of negligence, but also there was a “difference of 

opinion on the nature of [plaintiff’s] injury as well as the competent evidence 

of another possible cause for the injury.” Id. at 991. These factors “created 

a factual dispute regarding whether [plaintiff’s] injury was outside the scope 

of [defendants’] duty to appellant.” Id. (citation omitted). Consequently, 

[Plaintiffs] did not satisfy the necessary factors under the 

Restatement to proceed under the doctrine of res ipsa loquitur. 

Accordingly, we hold this case was not in reality a res ipsa loquitur

case, and the court's decision to deny [plaintiffs] a new trial on 

this ground must stand. . . . [W]e hold the court properly 

precluded [plaintiffs] from presenting their medical malpractice 

case at trial based on a res ipsa loquitur theory of negligence. 

Id. at 991-92 (citations omitted).3

____________________________________________

3 On appeal, the plaintiffs argued (1) trial court error for not allowing them to 

prove negligence through res ipsa loquitur and (2) trial court error for refusing 

to instruct the jury on res ipsa loquitur. This Court considered the two issues 

together, devoting much of its analysis to whether the plaintiffs satisfied the 

elements of § 328D, and concluding they did not satisfy either § 328D(1)(a) 

or (b). MacNutt, 932 A.2d at 990-91. While the Court did not devote 

significant separate analysis to the plaintiffs’ entitlement to prove negligence 

through res ipsa loquitur, the Court—as reflected above—ultimately

determined that the trial court properly precluded plaintiffs from presenting 

their case on a res ipsa loquitur theory of negligence. Id. at 991-92.
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My review of the case before us leads me to conclude that this case, just 

as MacNutt, is one in which the plaintiff produced direct evidence to support 

a negligence cause of action without the need to rely on res ipsa loquitur. As 

in MacNutt, the case before us is a case with expert testimony demonstrating 

the exact cause of the incident rather than circumstantial evidence of 

negligence. As such, it is not a res ipsa loquitur case. 

I offer the following factual summary in support of my conclusion. Mrs. 

Lageman filed suit alleging that Dr. Zepp, the anesthesiologist assigned to her 

surgery, negligently inserted a CVP line, also known as a catheter, into her 

carotid artery resulting in a stroke that left her partially paralyzed. At trial, 

she first called Dr. Zepp as a witness as on cross-examination. Dr. Zepp 

explained the procedure he employed for insertion of a CVP line. Notes of 

Testimony, Trial (“N.T.”) at 166-80. He admitted that in the course of 

inserting the CVP line, the catheter went through the walls of its intended 

destination (the jugular vein) and into Mrs. Lageman’s carotid artery. Id. at 

181.4 He acknowledged that placing a CVP line into the artery can increase 

the risk of stroke and that Mrs. Lageman did suffer a stroke. Id. at 185-86, 

189. When asked if “operator error” was the only explanation for what 

happened, he replied that the steps he took to confirm the catheter was in the 

____________________________________________

4

In his opening statement, Dr. Zepp’s counsel explained to the jury that the 

technical term for “when a catheter is placed in an artery rather than a vein” 

is “arterial cannulation.” Id. at 138. 
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proper location were the same steps he takes in the placement of every CVP 

line and stated, “I’ve searched my heart as to why this happened and whether 

there is any steps that I could have changed when I placed the line, and 

there’s nothing that I would have done differently.” Id. at 194-95. 

Mrs. Lageman’s counsel asked Dr. Zepp if he was wrong in thinking the 

catheter was in the jugular vein. Dr. Zepp answered, “I was wrong.” Id. at 

195. When asked if he was also wrong when he performed the manometry 

tests in the course of inserting the line, he said he was not wrong, 

commenting, “The manometry is a very sensitive test to determine whether 

or not you are arterial or venous, and the manometry passed the venous 

confirmation.” Id. 

Dr. Zepp’s own counsel later asked, “Dr. Zepp, you did not intend for 

this arterial cannulation to occur in connection with Mrs. Lageman’s line 

placement, correct?” Dr. Zepp answered, “That’s correct.” Counsel then 

asked, if “ultimately being wrong in that respect, is that the same thing as 

being negligent?” Dr. Zepp responded, without objection, “No.” Id. at 196. 

Mrs. Lageman presented the expert testimony of anesthesiologist Dr. Pepple. 

Dr. Pepple explained that he reviewed the transcript of Dr. Zepp’s 2015 

deposition. Dr. Pepple was asked, “In your area of expertise as an 

anesthesiologist, did you form an opinion as to whether [Dr.] Zepp in his 

placing the CVP line in Mrs. Lageman acted below the standard of care 

required under the circumstances of an anesthesiology specialist; in other 
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words, was he negligent?” Id. at 220. He answered, “My opinion was that 

he was negligent.” Id. Dr. Pepple went on to explain that placing the CVP 

line into the carotid artery can result in a total occlusion or an “embolic 

phenomenon or obstructive phenomenon which can cause a stroke.” Id. at 

222.

The following exchange subsequently took place between Mrs. 

Lageman’s counsel and Dr. Pepple:

Q. Now, Dr. Zepp would say he followed all the proper 

procedures, he did test with a tube called manometry, and he did 

everything right, but it turned out to be wrong in the artery. In 

your opinion, is that possible under the appropriate standard of 

care?

A. It doesn’t seem possible because the facts that we do know 

are that the catheter was in an artery, okay, so if it was in an 

artery, then if you worked backwards, you’d have to say, well, 

how did it get there?

If you transduced it, in other words, if you have a needle and you 

hook in this case a piece of plastic tubing to it and let the blood 

go up into it, if it’s in an artery, it usually will go up quite high. 

At his deposition, he said he did that. He didn’t record that in the 

anesthesia record. 

Id. at 226. 

Dr. Pepple acknowledged that Mrs. Lageman’s jugular vein was located 

directly above her carotid artery. That positioning occurs in approximately 

8% of people, whereas in approximately 70% of people, the jugular vein is to 

the lateral side. Id. at 227-28. While the location of her vein in relation to 

her carotid artery would not be an excuse for putting the catheter into the 
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artery, “It’s an explanation. It’s not an excuse. This was a more difficult 

placement than normal.” Id. at 230. As for transducing to locate the tip of 

the needle on the CVP line, Dr. Pepple indicated you would have to move the 

transducer up and down but the medical records do not reflect that was done. 

Id. at 229-30. 

Dr. Pepple expounded on the harm resulting from placing a catheter in 

the carotid artery. When asked if placing a catheter in the carotid artery 

increases the risk of a stroke, he replied that it “increases it exponentially.” 

Id. at 232. Further, if Dr. Zepp put the catheter into the artery before 

realizing it was in the artery, “[t]hat is below the standard of care. I mean, 

that’s what we are trying to avoid entirely.” Id. at 233. To a reasonable 

degree of medical certainty, it was Dr. Pepple’s opinion that Mrs. Lageman’s 

stroke was “caused by this catheter being down 18 centimeters 

[approximately seven inches] into the arterial area.” Id. at 237. If the 

standard of care had been properly observed, all the steps were taken 

correctly, and things were seen and evaluated correctly, it would not be 

possible for the carotid artery to be cannulated “to that degree.” Id. at 238 

(emphasis added). 

At the conclusion of the testimony from Dr. Pepple, whose testimony 

was taken out of order to accommodate his schedule, Dr. Zepp returned to 

the stand. When asked if he agreed with Dr. Pepple’s opinion that he 

performed Mrs. Lageman’s procedure in a negligent fashion, Dr. Zepp replied, 
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“No, I do not.” Id. at 296-97. He then proceeded, over objection from Mrs. 

Lageman’s counsel, to demonstrate and describe insertion of a CVP line using 

a mannequin. Id. at 297-311. 

In addition to Dr. Zepp’s own testimony, the defense offered the expert 

testimony of anesthesiologist Dr. Hudson. Based on his review of the 

anesthesia records from Mrs. Lageman’s surgery and Dr. Zepp’s deposition, 

Dr. Hudson formed opinions, to a reasonable degree of medical certainty, that 

Dr. Zepp’s conduct met the applicable standard of care, that Dr. Zepp was not 

negligent, and that Dr. Zepp did not commit malpractice. Id. at 502. Dr. 

Hudson noted his awareness of the arterial cannulation that occurred in the 

placement of Mrs. Lageman’s CVP line and expressed his opinion that Dr. Zepp 

“followed the standard of care and the guidelines that are developed based on 

the medical evidence in the steps that he took in the placement of the - - the 

attempted placement of the central line.” Id. at 502-03. He stated that Dr. 

Zepp used ultrasound first to identify the location of the jugular vein in relation 

to the carotid artery; however, the use of ultrasound does not eliminate the 

risk of arterial cannulation. Id. at 503-04. He also discussed manometry, the 

“gold standard” confirmatory test for location of the catheter, and explained 

that in the course of conducting that final step of measuring the pressure in 

the line, Dr. Zepp recognized that the line was in the carotid artery. Id. at 

509-10. 
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Dr. Hudson was asked to articulate the major reasons why he disagreed 

with Dr. Pepple’s opinions and criticism of Dr. Zepp’s actions. Dr. Hudson 

explained that Dr. Pepple extensively discussed the usefulness of “a long axis 

with an in-plane view of ultrasound versus a short axis view ultrasound.” Id. 

at 511. Dr. Zepp had testified that he used the short axis view ultrasound. 

Id. at 167-68. Dr. Hudson noted that “there’s really no compelling medical 

evidence that suggests the one is better than the other to prevent posterior 

wall puncture of the internal jugular vein or prevent[] carotid artery 

cannulation. The vast majority of anesthesiology and critical care medicine 

practitioners use a short axis view, they do not use a long axis view[.]” Id. 

at 511. He also took issue with Dr. Pepple’s lack of discussion concerning the 

importance of manometry, which in his estimation “is such a vital part of the 

confirmatory process in assuring that that initial catheter is in the vein and 

not the artery.” Id. at 512.

Dr. Hudson testified that he has been involved in quality assurance 

within institutions where he has practiced. Id. He acknowledged that he has 

experienced arterial cannulation in connection with CVP line placement in the 

course of his practice, as have experienced colleagues in his department. Id. 

In his opinion, “Dr. Zepp’s description of his techniques for placement of 

central venous catheters, he took the recommended steps to limit the risk of 

inadvertent arterial cannulation, and his technique is consistent with the 

standard of care.” Id. at 512-13. 
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Again, 

[b]ecause medical malpractice is a form of negligence, to state a 

prima facie cause of action, a plaintiff must demonstrate the 

elements of negligence: a duty owed by the physician to the 

patient, a breach of that duty by the physician, that the breach 

was the proximate cause of the harm suffered, and the damages 

suffered were a direct result of harm. With all but the most selfevident medical malpractice actions there is also the added 

requirement that the plaintiff must provide a medical expert who 

will testify as to the elements of duty, breach, and causation.

Tillery v. Children’s Hospital of Philadelphia, 156 A.3d 1233, 1240 (Pa. 

Super. 2017) (quoting Fessenden, 97 A.3d at 1229). Further, “[a]n expert 

witness proffered by a plaintiff in a medical malpractice action is required to 

testify to a reasonable degree of medical certainty, that the acts of the 

physician deviated from good and acceptable medical standards, and that such 

deviation was the proximate cause of the harm suffered.” Id. (quoting 

Stimmler v. Chestnut Hill Hosp., 981 A.2d 145, 155 (Pa. 2009)).

There is no dispute that Dr. Zepp owed a duty of care to his patient, 

Mrs. Lageman. Based on my review of Dr. Pepple’s testimony, an abridged 

version of which I have provided above, I conclude that Mrs. Lageman 

presented sufficient direct evidence to demonstrate that Dr. Zepp’s actions fell 

below the standard of care and therefore breached his duty of care to Mrs. 

Lageman. Through Dr. Pepple’s testimony, she also established that Dr. 

Zepp’s breach of duty caused her stroke, which left her paralyzed. Testimony 

from various witnesses, including an actuary, Jonathan Cramer, N.T. at 351-

81, Mrs. Lageman’s daughter, Adrienne Marie Lageman, id. at 392-404, and 
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Mrs. Lageman herself, Lageman Deposition, 4/14/15, at 1-16, showed that 

Mrs. Lageman suffered damages as a direct result of the harm. Therefore, 

even though Dr. Zepp contested the evidence, Mrs. Lageman established a 

prima facie case of negligence against Dr. Zepp.5 The Majority recognized 

that fact. Majority Opinion at 5 (“Thus, [Mrs. Lageman] established a prima 

facie case of negligence: a duty to use reasonable care, breach of that duty, 

and evidence that breach increased the risk of harm actually suffered by Mrs. 

Lageman.”).

Following closing arguments, the trial court properly charged the jury 

on the elements of negligence and, in particular, medical negligence with 

respect to a doctor’s performance of duties that stem from his professional 

relationship with a patient. The jury was instructed to determine if Dr. Zepp’s 

care or treatment fell below the standard of care, whether his negligence was 

a factual cause of Mrs. Lageman’s injuries, and the amount of damages she 

sustained as a result of Dr. Zepp’s negligence. N.T. at 628-37. The jury was 

advised that a bad or unforeseen result that occurs as a result of a physician’s 

conduct is not necessarily proof of negligence, that a doctor does not 

guarantee a particular result, and that the jury may not infer the doctor was 

negligent solely because the treatment ended with an unfortunate result. Id. 

____________________________________________

5

I note that the trial court denied Dr. Zepp’s motion for nonsuit. N.T., at 407-

08. Both parties requested, and were denied, directed verdicts at the close of 

testimony. Id. at 563-64.
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at 629. Following deliberations, the jury concluded Dr. Zepp was not 

negligent. Id. at 649. 

The fact the jury determined Dr. Zepp was not negligent is not an 

indication Mrs. Lageman failed to establish a prima facie case of negligence. 

To the contrary, she presented expert testimony that provided direct evidence 

of Dr. Zepp’s negligence. In this instance, the evidence was contested by Dr. 

Zepp through his own testimony and that of his expert, Dr. Hudson. It was 

up to the jury to weigh that evidence and apply the law as instructed by the 

trial court. It is presumed that jurors follow the court’s instructions. Farese 

v. Robinson, 222 A.3d 1173, 1184 (Pa. Super. 2019).

Because Mrs. Lageman presented direct evidence of causation, and 

therefore direct evidence of negligence, she was not entitled to a res ipsa 

loquitur instruction. I would find, as the en banc panel of this Court did in 

MacNutt, that the trial court “properly precluded [plaintiffs] from presenting 

their medical malpractice case at trial based on a res ipsa loquitur theory of 

negligence.” MacNutt, 932 A.2d at 992. Therefore, the trial court did not err 

or abuse its discretion in denying a res ipsa instruction and Mrs. Lageman 

should not be granted a new trial. 

Although I conclude the Majority incorrectly determined Mrs. Lageman 

was entitled to a res ipsa instruction and, therefore, a new trial, I write further 

to express my disagreement with the Majority’s analysis of the first element 

of § 328D. In my estimation, Mrs. Lageman simply did not establish that the 
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event at issue here—arterial cannulation—does not ordinarily occur in the 

absence of negligence. 

To warrant a res ipsa instruction, a plaintiff must satisfy all three 

elements of § 328D. MacNutt, 932 A.2d at 987. 

In accordance with § 328D, 

(1) It may be inferred that harm suffered by the plaintiff is caused 

by negligence of the defendant when

(a) The event is of a kind which ordinarily does not occur in 

the absence of negligence;

(b) Other responsible causes, including the conduct of the 

plaintiff and third persons, are sufficiently eliminated by 

the evidence; and

(c) The indicated negligence is within the scope of the 

defendant’s duty to the plaintiff.

Restatement (Second) of Torts, § 328D(1) (1964) (emphasis added).

As the trial court recognized:

On March 13, 2014, Plaintiff filed a complaint in medical 

malpractice and negligence against the above-named Defendants. 

Plaintiff alleged that Defendant Zepp was negligent for breaching 

the standard of care as a result of placing the catheter through 

the vein and into Plaintiff’s artery[, i.e., arterial cannulation] 

causing her to suffer a stroke in her right middle cerebral artery 

that resulted in left-sided paralysis.

Trial Court Opinion, 8/2/18, at 3. In the context of this case, and assuming 

for the sake of argument that a res ipsa instruction was warranted, I submit 

that § 328D appropriately would be read as follows:
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(1) It may be inferred that the stroke6 suffered by the Mrs. Lageman is 

caused by negligence of Dr. Zepp if

(a) Arterial cannulation is an event of the kind that ordinarily 

does not occur in the absence of negligence;

(b) Other responsible causes of the stroke are eliminated; and 

(c) The indicated negligence is within the scope of Dr. Zepp’s duty 

to Mrs. Lageman.7

As outlined above, Mrs. Lageman’s expert, Dr. Pepple, concluded Dr. 

Zepp was negligent in his placement of the central line. In particular, Dr. 

Pepple was critical of the technique employed by Dr. Zepp in the insertion of 

the central line, and concluded his placement of the catheter into the carotid 

artery fell below the standard of care. However, he also acknowledged that 

following all of the applicable guidelines established by the American Society 

of Anesthesiologists “cannot guarantee any specific outcome.” N.T. at 282. 

See also id. at 293 (following the recommended steps cannot guarantee any 

specific outcome for a patient). 

By contrast, Dr. Zepp testified that he was not negligent and that arterial 

cannulation can occur, even in the absence of negligence. Id. at 314. He 

explained that there is an algorithm for managing the complications of arterial 

cannulation because

____________________________________________

6 There is no suggestion there was any damage to Mrs. Lageman’s carotid 

artery or her jugular vein as a result of the arterial cannulation. The stroke is 

the “harm” she alleged resulted from the arterial cannulation.

7 The trial court determined that Mrs. Lageman established the third element, 

i.e., that the indicated negligence is within the scope of Dr. Zepp’s duty to 

Mrs. Lageman. Trial Court Opinion, 8/2/18, at 8.
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[i]t’s necessary for the care of the patient. If this type of issue 

never arose, there wouldn’t be an algorithm for its use. There 

would be no reason to create an algorithm for this type of an issue.

It’s something that’s happened to my partners, it’s something 

that’s obviously happened to me, so, you know, we have these 

best practice guidelines to guide us through placing this line, but 

even in the absence of negligence, we can still have these 

arterial cannulations, and we need to have a way to be able to 

manage them. And the literature supports the use of getting 

another body and getting a vascular surgeon in to, you know, 

further investigate that rather than pulling that catheter out and 

just holding pressure. 

Id. at 314-15 (emphasis added).

In addition, Dr. Zepp’s expert, Dr. Hudson, offered his opinion that Dr. 

Zepp was not negligent, that his conduct met the applicable standard of care, 

and that Dr. Zepp followed proper guidelines in the attempted placement of 

the central line. Id. at 502-03. Dr. Hudson also acknowledged that arterial 

cannulation has occurred in connection with his placement of a central line 

and has happened with experienced colleagues in his department. Id. at 512. 

“[E]ven following the guidelines, you cannot guarantee that you are going to 

prevent injury.” Id. at 546.8 

In deciding the first element of § 328D was satisfied, the Majority 

contends that Mrs. Lageman “produced testimony that cannulation of the 

____________________________________________

8 Because Dr. Hudson’s report did not specifically state that arterial 

cannulation does not happen in the absence of negligence, the trial court 

precluded Dr. Zepp’s counsel from eliciting that opinion at trial. See Majority 

Opinion at 25 n.8. 
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artery did not usually occur in the absence of negligence when the procedure 

was performed with manometry as maintained by [Dr.] Zepp.” Majority 

Opinion at 14. The Majority also indicated, without citation to the trial 

transcript, “Dr. Pepple testified unequivocally herein that, to a reasonable 

degree of medical certainly, arterial cannulation would not have occurred in 

the absence of negligence in the performance of the central line placement.” 

Id. at 20. However, my review of the transcript fails to unearth any 

unequivocal statement by Dr. Pepple that arterial cannulation does not 

ordinarily occur in the absence of negligence. Rather, he offered his opinion 

that Dr. Zepp was negligent in his insertion of the central line and that his 

conduct fell below the standard of care. N.T. at 220, 233. He also was asked, 

“And if one is approaching a patient like this within the standard of care that 

is done negligently, should this cannulation of the artery occur?” Id. at 240. 

Dr. Pepple responded, “It should not occur.” Id.9 In essence, the expert 

testimony of Dr. Pepple did nothing more than satisfy the elements necessary 

to establish a prima facie case of a medical negligence case. See Quinby, 

907 A.2d at 1070 (“Because medical malpractice is a form of negligence, to 

state a prima facie cause of action, a plaintiff must demonstrate the elements

of negligence: a duty owed by the physician to the patient, a breach of that 

____________________________________________

9 While I am not quite certain of the meaning of counsel’s question, the 

question clearly did not ask if arterial cannulation ordinarily does not occur in 

the absence of negligence. 
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duty by the physician, that the breach was the proximate cause of the harm

suffered, and the damages suffered were a direct result of harm.”) (quotation 

and citation omitted). 

It further appears the Majority rejected the testimony of Dr. Zepp that 

arterial cannulation can occur even in the absence of negligence and similarly 

discounted Dr. Hudson’s opinion that Dr. Zepp met the applicable standard of 

care. Regardless, Dr. Pepple’s conclusion that Dr. Zepp was negligent does 

not equate to a conclusion that arterial cannulation does not ordinarily occur 

in the absence of negligence. Again, it was enough to satisfy the requirements 

necessary to establish a prima facie of negligence. The case appropriately 

went to the jury on that basis and the jury determined that Dr. Zepp was not 

negligent. 

With respect to res ipsa loquitur, the trial court concluded:

We find that the evidence in this case did not establish that more 

likely than not that [Mrs. Lageman’s] injuries were caused by [Dr.] 

Zepp’s negligence. We find that the experts shared different views 

on the use of ultrasound to find the vein and artery. Based on 

these conclusions, we found that the possibilities were evenly 

divided between negligence and its absence. As a result, we 

found that [Mrs. Lageman] did not meet her burden of proof 

of drawing a permissible conclusion that an arterial 

cannulation does not ordinarily happen unless someone is 

negligent. We suggest that conclusion is not erroneous.

Trial Court Opinion, 8/2/18, at 19 (emphasis added). 

Again, “[b]efore a plaintiff can invoke the doctrine of res ipsa loquitur,

all three of the elements of Section 328D(1) must be established; only then 

does the injurious event give rise to an inference of negligence.” MacNutt, 
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932 A.2d at 987 (citations omitted). Mrs. Lageman failed to establish the first 

element and I believe the Majority’s conclusion to the contrary is incorrect. 

Therefore, even assuming Mrs. Lageman was entitled to proceed on a res ipsa 

loquitur theory, she did not satisfy the first element of § 328D and would not 

have been entitled to a res ipsa loquitur jury instruction. 

The Majority also concludes that the trial court committed an error of 

law by permitting Dr. Zepp to conduct a live demonstration using a mannequin 

to illustrate the process of inserting a central line. Majority Opinion at 28-34. 

It is well settled that “the admission of evidence rests within the sound 

discretion of the trial court and will only be reversed upon a showing that it 

abused its discretion.” Quinby, 907 A.2d at 1078. Additionally, "for a ruling 

on evidence to constitute reversible error, it must have been harmful or 

prejudicial to the complaining party.” Stumpf v. Nye, 950 A.2d 1032, 1036 

(Pa. Super. 2008) (citation omitted). 

As this Court has explained:

Demonstrative evidence is “tendered for the purpose of rendering 

other evidence more comprehensible for the trier of fact.” 

2 MCCORMICK ON EVIDENCE § 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)(1)).

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

Here, the trial court concluded:
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We find the demonstration was relevant to help the jury 

understand what this procedure involved and the steps that are 

undertaken to accomplish the procedure. We also find that the 

testimony throughout this portion of the trial made it clear to the 

jury that this demonstration was not illustrative of the 

circumstances in [Mrs. Lageman’s] case. The demonstration was 

only used for the purpose of showing the steps for placing a 

central venous line. [Mrs. Lageman] had plenty of opportunity to 

clarify this fact to the jury and to cross-examine [Dr.] Zepp while 

the mannequin was in the room during the trial. Therefore, we 

find that we did not abuse our discretion in allowing the 

demonstrative exhibit to be presented before the jury in this case.

Additionally, the demonstration tended to show clearly to the jury 

how the initial position of the needle was plainly visible through 

the ultrasound, and thus, how its placement in an artery could 

have been avoided. We fail to see how the demonstration 

prejudiced [Mrs. Lageman].

Trial Court Opinion, 8/2/18, at 21-22.

My review of the transcript supports the trial court’s findings. The 

demonstration enabled the jury to better understand the procedure Dr. Zepp 

performed on Mrs. Lageman and the technique he employed. The fact that 

Dr. Zepp was demonstrating the procedure on a mannequin and not recreating 

the actual procedure performed on Mrs. Lageman was driven home several 

times in the course of his testimony. See N.T at 297 (“obviously, we have a 

mannequin here” . . . “This is a mannequin. This is a mannequin specifically 

designed in our simulation lab in York Hospital to allow you to practice this 

technique”); at 297-98 (“You can’t go through all the steps, so there’s going 

to be a point [] where I kind of stop, and I’ll talk you through the rest. The 

reason that is, is, again, you don’t want to put the dilators into the 

mannequin”); at 298 (“I mean, again, it’s just a model, a mannequin, so it’s 
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not as realistic as it is in real life”); at 301 (“I’m not going to do that again. 

It’s a mannequin,”); and at 305 (“I can’t really replicate that with the 

mannequin, but that’s kind of standard practice when you place the line”).

Further, as the trial court determined, “We fail to see how the 

demonstration prejudiced [Mrs. Lageman].” Trial Court Opinion, 8/21/18, at 

22. In fact, before Dr. Zepp concluded the demonstration, Mrs. Lageman’s 

counsel asked, “[C]ould we have the doctor show what it actually looks like 

when it is in the artery like it was with Mrs. Lageman” because he “showed us 

what it looks like when it’s in the vein[.]” N.T. at 305-06. Dr. Zepp proceeded 

to put the needle into the artery, explaining “when you have a real patient, 

this column of tubing goes up fast because it’s a higher pressure system, and 

you will be able to see that pulsation.” Id. at 308. He explained that the 

orientation was the same as before and stated, “See the pulsations? The 

manometry corresponds to the pulsations, . . . the column of fluid doesn’t fall 

back down into the patient.” Id. 

In his closing argument, Mrs. Lageman’s counsel actually used the 

demonstration to support his claim of Dr. Zepp’s negligence, stating:

Well, what about this manometry? That’s a procedure that’s 

supposed to be done before you put the large bore catheter in to 

verify that you are not in the artery, in the vein.

You had a demonstration here with a mannequin, and – a practice 

mannequin, and Dr. Zepp was showing what he says that he did 

or he always does and probably believes that he did. But I 

interrupted him. I stood up. I interrupted. I said, could we see 

what it would look like if you actually put that catheter in the 

artery where nobody disagrees that it was? Nobody disagrees 
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with that. What would it look like if you put it in the artery? And 

he held up the tube, and there was some necessity to try to mimic 

the heartbeat by squeezing that bulb, and you could see that it 

was red and it went up and down with the heart. 

Then Dr. Zepp went over and showed you the heartbeat, the peak 

of the mountain, after he had sewed everything in and after he 

checked the pressure, and then he learned, you know, it’s too late, 

that he was in the artery.

So that – I asked him, does that top of the wave there, does that 

correspond to the heart beating? And he said, yes, that’s when 

the heart contracts and beats, and that’s when the column rises if 

you are doing the manometry correct, that gold standard that Dr. 

Hudson talked about.

So how – if your manometry was done, if it was done properly, if 

it was interpreted properly, how do you miss that? How do you 

miss seeing that the blood is red and it’s going up and down?

The blood is a different color in the veins than in the arteries. I 

used these, and I asked, is that – I asked in the question, is that 

pretty much the difference? Yeah.

So was the manometry done? Was it done properly? Was it 

interpreted properly? Even Dr. Hudson agreed, their expert, that 

if it was not, that is below the standard of care.

N.T. at 602-04. 

I believe the trial court properly exercised its discretion in permitting 

the demonstration. Moreover, Mrs. Lageman has failed to demonstrate how 

she was prejudiced by the court’s ruling. Finding no abuse of discretion in 

that evidentiary ruling, I would not disturb it.