J. A25007/16

NON-PRECEDENTIAL DECISION -- SEE SUPERIOR COURT I.O.P. 65.37

MARK W. SCHWALM, :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

 Appellant :

:

v. :

:

RUPEN G. MODI, D.O., 

HOLY SPIRIT HOSPITAL OF THE 

SISTERS OF CHRISTIAN CHARITY, 

AND NEW JERSEY/PENNSYLVANIA 

EM-I MEDICAL SERVICES, P.C.

:

:

:

:

:

No. 145 MDA 2016

Appeal from the Judgment Entered January 7, 2016,

in the Court of Common Pleas of Cumberland County

Civil Division at No. 2013-03739

BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, J., AND STEVENS, P.J.E.*

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED DECEMBER 22, 2016

Mark W. Schwalm appeals from the judgment entered January 7, 2016 

for defendants/appellees in this medical malpractice action. After careful 

review, we affirm.

The trial court has aptly summarized the facts of this matter as 

follows:

We will start with a recitation of the facts in 

the light most favorable to [appellees] as the verdict 

winner. [Appellant]’s girlfriend [(Leslie Shenk)] 

testified at trial that he was more quiet than usual 

and did not seem himself on the evening of April 7, 

2012. On the morning of April 8, 2012, they got out 

of bed at approximately 10:00 a.m. While the 

 

* Former Justice specially assigned to the Superior Court.
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girlfriend was in the kitchen making coffee, 

[appellant] was in the bathroom changing his 

clothes. He testified that as he picked up his 

overnight bag, he “felt like a warmth and like the 

breath went out of [him].” When he came into the 

living room, his girlfriend saw him struggle to pick up 

a picture that had been knocked over. Minutes later, 

she noticed that he was struggling to drink his 

coffee. They went directly to the emergency room at 

Holy Spirit Hospital.

At approximately 11:30 a.m. [appellant] 

arrived at the hospital. Dr. [Rupen G.] Modi[, D.O.,] 

examined him immediately upon arrival. [Appellant] 

reported that the left side of his face was drooping 

and weak and that he had had some difficulty 

drinking his coffee earlier that morning. He did not 

report any difficulty standing, walking, or additional 

weakness.[Footnote 13] [Dr. Modi] took a history of 

[appellant]’s symptoms and conducted both physical 

and neurological examinations. Dr. Modi recorded 

sudden onset of symptoms as thirty minutes prior.

[Footnote 13] [Appellant] did not tell 

anyone at the emergency department 

about him struggling to pick up a picture 

frame.

A few moments later at 11:40 a.m., the triage 

nurse met with [appellant]. She recorded that 

[appellant] awoke at 10:00 a.m. with symptoms and 

had a loss of sensation in his left arm. After 

reviewing the nurse’s note, [Dr. Modi] returned to 

examine [appellant]’s left arm. Upon examination, 

[appellant] reported that the sensation in both arms 

was the same and withdrew his complaint concerning 

his left arm.

[Dr. Modi] concluded that the “most 

reasonable diagnosis” for [appellant]’s symptoms 

was Bell’s palsy. The third most common cause of 

Bell’s palsy is Lyme disease. [Appellant] reported to 

[Dr. Modi] that he had removed a deer tick from his 

abdomen approximately ten days prior. A key factor 
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in [Dr. Modi]’s diagnosis of Bell’s palsy was the 

involvement of the left side of [appellant]’s forehead 

in his facial paralysis.[Footnote 23]

[Footnote 23] [Appellant] could not raise 

his left eyebrow during the physical 

examination. The jury heard testimony 

that a stroke would allow continuing 

function of the forehead whereas a lesion 

of the facial nerve (Bell’s palsy) would 

cut off nerve supply to both the upper 

and lower face, leaving the forehead 

paralyzed.

Before [appellant]’s discharge, [Dr. Modi] held 

a fifteen-minute conversation with [appellant] and 

his girlfriend regarding the differences between Bell’s 

palsy and stroke. [Dr. Modi] also discussed 

instructions for [appellant] should his symptoms 

change or worsen.

After his discharge, [appellant] drove without 

incident from Camp Hill to his residence in Tower 

City, a distance of approximately 38 miles. He was 

examined the following morning by his family doctor 

who also diagnosed Bell’s palsy. Two days later 

[appellant] underwent a brain MRI, which revealed 

that he had, in fact, suffered a stroke.[Footnote 28] 

He was immediately admitted to the hospital.

[Footnote 28] There is no dispute 

among the parties that [appellant]’s 

stroke occurred prior to [Dr. Modi]’s 

treatment of [appellant] on April 8, 

2012.

Trial court opinion, 4/7/16 at 2-3 (citations to the transcript omitted) (some 

footnotes omitted).1

 

1 Appellant accepts the factual and procedural history of the case as set forth 

in the trial court’s Pa.R.A.P. 1925(a) opinion. (Appellant’s brief at 6.)
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[Appellant] filed this medical malpractice 

action as a result of his treatment at the Emergency 

Department of Holy Spirit Hospital on the morning of 

April 8, 2012. He alleged that Defendant 

Dr. Rupe[n] Modi was negligent in failing to diagnose 

that he had suffered a stroke. He contended that 

had he been correctly diagnosed, he would have 

received tPA[2] treatment which could have greatly 

limited the adverse effects of his stroke. A jury 

found that Dr. Modi was not negligent in his care and 

treatment of [appellant].[Footnote 1] [Appellant] 

filed a Motion for Post-Trial Relief which we denied 

on December 22, 2015.

[Footnote 1] The jury did not reach the 

issues of causation and damages or 

whether [Dr. Modi] was an agent of 

Defendant Holy Spirit Hospital.

Id. at 1.

This timely appeal followed. Appellant complied with 

Pa.R.A.P. 1925(b), and the trial court filed a Rule 1925(a) opinion.3 

 

2 Tissue plasminogen activator (“tPA”) is a thrombolytic (a “clot-busting” 

drug) to break up blood clots.

3 The trial court noted that appellant’s Rule 1925(b) statement was 22 pages 

long with 5 pages of exhibits. (Trial court opinion, 4/7/16 at 1 n.2.) The 

trial court characterized it as “neither concise nor particularly helpful.” (Id.) 

We caution appellant that filing an unnecessarily voluminous Rule 1925(b) 

statement can result in waiver. Jiricko v. Geico Ins. Co., 947 A.2d 206, 

210-214 (Pa.Super. 2008), appeal denied, 958 A.2d 1048 (Pa. 2008) 

(finding waiver where the appellant’s statement “reveals a deliberate 

attempt to circumvent the meaning and purpose of Rule 1925(b) and to 

overwhelm the court system”). Here, however, there is no evidence of bad 

faith and all of appellant’s allegations of error relate to the testimony of 

appellees’ experts, Dr. James Jaffe and Dr. James Gebel. (Trial court 

opinion, 4/7/16 at 1.) The trial court did address these issues in a Rule 

1925(a) opinion. Therefore, we will not find appellant’s issues waived on 

appeal. See Eiser v. Brown & Williamson Tobacco Corp., 938 A.2d 417 
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Appellant has raised the following issues for this court’s review:

A. Did the trial court commit judicial error and/or 

abuse its discretion in denying [appellant]’s 

motion in limine and objections at trial in 

permitting defendant’s expert, Dr. Gebel, to 

testify beyond his role as an independent 

medical consultant performing an independent 

medical examination contrary to 

Pa.R.C.P. 4010 and testifying as an expert 

beyond his qualifications, and contrary to 

Pa.R.Evid. 702, 703, 704, and 705?

B. Did the trial court err and abuse its discretion 

in denying [appellant]’s motion in limine and 

objections at trial in permitting Dr. Jaffe to 

testify beyond the scope of his qualifications 

and contrary to Pa.R.Evid. 702, 703, 704 and 

705?

C. Did the trial court commit judicial error and 

abuse its discretion in permitting Doctors Gebel 

and Jaffe to testify as to the standard of care 

of an emergency room physician when neither 

was qualified as an emergency room physician 

and contrary to the order of the court that 

neither would testify as to the standard of care 

of an emergency room physician?

Appellant’s brief at 4 (capitalization deleted).

“[W]hen reviewing the denial of a motion for new trial, we must 

determine if the trial court committed an abuse of discretion or error of law 

that controlled the outcome of the case.” Estate of Hicks v. Dana 

Companies, LLC, 984 A.2d 943, 951 (Pa.Super. 2009) (en banc), appeal 

 

(Pa. 2007) (plurality) (waiver based on the number of issues raised is 

inappropriate in the absence of bad faith).
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denied, 19 A.3d 1051 (Pa. 2011) (citations omitted).

Admission of evidence is within the sound discretion 

of the trial court and we review the trial court’s 

determinations regarding the admissibility of 

evidence for an abuse of discretion. To constitute 

reversible error, an evidentiary ruling must not only 

be erroneous, but also harmful or prejudicial to the 

complaining party.

Id. at 961 (citations omitted). “Additionally, [e]videntiary rulings which did 

not affect the verdict will not provide a basis for disturbing the jury’s 

judgment.” Id. (internal quotation marks and citations omitted) (brackets in 

original).

Since all of appellant’s issues on appeal concern the expert testimony 

of Dr. Gebel and Dr. Jaffe, we will briefly summarize their testimony. 

James Jaffe, M.D., testified via videotaped deposition on July 10, 2014. 

Dr. Jaffe is a board-certified neurointerventional radiologist. (Notes of 

testimony, 7/10/14 at 6, 8.) Dr. Jaffe currently practices at Holy Cross 

Hospital in Silver Spring, Maryland. (Id. at 9.) As part of his practice, he 

assesses emergency room patients suspected of having a stroke. (Id. at 7.) 

Dr. Jaffe is consulted regarding whether or not patients have had or are 

having a stroke, what type of stroke (ischemic or hemorrhagic), and whether 

they are eligible for catheter-based therapies, including tPA therapy. (Id.)

Dr. Jaffe reviewed numerous records, including appellant’s hospital 

records, the records of his primary care physician, Dr. Edward Lentz, and 

appellant’s deposition testimony. (Id. at 37-38.) According to Dr. Jaffe, 
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even if appellant had been diagnosed as having a stroke, he would not have 

been a candidate for tPA therapy due to the uncertain time of onset of the 

condition. (Id. at 41.) Dr. Jaffe characterized appellant’s stroke as a 

“wake-up stroke”:

From the record of Holy Spirit Hospital, it states that 

the patient awoke with symptoms. So, to me, that’s 

a wake-up stroke. We don’t know the exact timing 

of the stroke. Time is brain. It could have occurred 

anywhere from the time he went to sleep.

Q[.] And why is that important?

A[.] Because studies have shown if tPA is given 

after four and a half hours of the onset of 

stroke, it actually causes more harm to 

patients than benefit.

Id. at 46.

Dr. Jaffe characterized this case as “very confusing” as to the onset of 

appellant’s symptoms: 

Well, I think, as we have demonstrated here, that 

this is a very confusing case with confusing timing as 

to onset of symptoms. As I read through the 

depositions, there is [sic] multiple different times of 

symptoms, multiple different times of when 

symptoms are reported. In the actual medical 

record, which we have to take as fact, it says the 

patient awoke with symptoms. That means, to me 

as a physician taking care of stroke patients, there is 

no exact timing of when the stroke began. If you 

have no exact timing of when the stroke began, you 

have to try to get witnesses to tell you when the last 

time the patient was witnessed as normal. As far as 

I can see from the records and fact, that was at 

midnight on, whether you want to say April 7th or 

April 8th, 2012. Also in the record of deposition of 

Ms. Shenk, she said he wasn’t feeling very well. He 
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wasn’t quite himself. And my practice of patients 

I’ve seen, one of the early signs of stroke that I hear 

from family members, loved ones, is that they 

weren’t feeling quite right, they weren’t themselves. 

And that can be very confusing with stroke. Stroke 

is a very confusing diagnosis to make. A lot of 

patients come in to the emergency rooms that I’ve 

seen, when I’ve been in the emergency room, who 

have been diagnosed as psychotic. They later turn

out to have a stroke. They weren’t feeling quite 

right. It can be one of the signs of stroke. So, when 

I look at the record and the records, in fact, that 

possibly the stroke began the evening before. But as

far as I can tell from the medical record that’s 

written, is that he awoke with stroke, so, there is no 

exact timing. I think the other fact that comes in 

here is that there weren’t hard and fast stroke 

symptoms. There was another diagnosis that 

explained what he was having, so that the physician

who is taking care of him, from the record, thought 

in his best medical opinion that it was reasonable 

that this gentleman was not having a stroke, but was 

suffering from Bell’s palsy, of which IV tPA will have 

no benefit, will only cause harm.

Id. at 54-55.

Dr. Jaffe testified that before tPA therapy can be administered, it must 

be certain that the patient is actually having a stroke: 

Q[.] Now, is it fair to say that before any patient is 

given tPA or a catheter-based treatment for an 

acute stroke that you essentially have to be 

sure that the patient is having a stroke?

A[.] Absolutely. Any of these therapies, whether 

it’s IV [(intravenous)] tPA, IA [(intra-arterial)] 

tPA or the catheters I use to remove clots, 

they can have devastating complications that 

can make a stroke patient worse than his 

natural history of stroke.
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Q[.] Can you explain what you mean by that in 

further detail, please?

A[.] IV tPA, for example, can cause a brain 

hemorrhage, which can kill a patient. The 

catheters that we use to remove clots can kill a 

patient. And some instances, again, some of 

these methodologies, if used improperly, will 

cause more harm to a patient than benefit.

Id. at 59. Dr. Jaffe also testified that even among those stroke patients who 

received IV tPA within the 41⁄2 hour time window, 89% showed no benefit 

over their natural stroke history. (Id. at 59-60.)

On cross-examination, Dr. Jaffe was questioned regarding appellant’s 

statement that he woke up at 9:00 a.m. and used the bathroom without 

symptoms. (Id. at 68.) Dr. Jaffe explained that appellant could have used 

the bathroom at 9:00 a.m. or even brushed his teeth when he got up again 

at 10:00 a.m. while having a stroke: 

I recognize that patients who have strokes a lot of 

times don’t recognize they’re having strokes. And 

just like now, he might not have and the first time 

the girlfriend recognized it, because he was dropping 

things. A lot of times we wake up in bed, we sit 

there in bed, we don’t necessarily do any activity and 

yet we have had a stroke and we fall back to sleep 

again. So, I didn’t disregard that, but that doesn’t 

mean anything to me. It doesn’t mean he didn’t 

already have a stroke.

Id. at 68.

My point is, is that he didn’t have any motor 

weakness. I would expect him to be able to brush 

his teeth. I would expect him to be able to go to the 

bathroom. As we saw, even when he went to Holy 

Spirit, he still was not having any motor weakness. 
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That doesn’t mean his stroke wasn’t started before 

that, nor does it mean his stroke didn’t happen at 

9:00 when he woke up.

Id. at 70.

James M. Gebel, Jr., M.D., testified at trial on July 18, 2014. Dr. Gebel 

is a stroke neurologist and is currently the chair of neurology at Akron 

General Medical Center in Akron, Ohio. (Notes of testimony, 7/18/14 at 5.) 

Dr. Gebel performed an independent medical examination (“IME”) of 

appellant and also prepared an expert report. (Id. at 8-11.) As did 

Dr. Jaffe, Dr. Gebel testified that due to the uncertainty of the onset of 

appellant’s symptoms, he would not have been a viable candidate for tPA 

therapy:

Q[.] Doctor, having reviewed these materials, have 

you been able to identify precisely when 

Mr. Schwalm’s onset of symptoms -- can you 

give me a timeframe for that?

A[.] Again, sir, I don’t know how I can. I mean, I 

think if we take what his girlfriend is saying 

about -- you know, she uses exactly the same 

phraseology, as I recall, in the e-mail about 

the evening before versus the same day. If 

that is what she observed, and if, in fact, that 

is correct, I think that is a plausible -- you 

know, the most plausible timeframe for it 

starting. If what Mr. Schwalm told me, which 

is that he woke up at 9:00, went to urinate, 

was completely fine and asymptomatic and had 

no problems, spoke to his girlfriend, and then 

an hour later woke up with the symptoms, 

then I’d have to place the onset at 9 a.m. If I 

take what the neurologist who saw him said, 

which is that he woke up, and as soon as he 

got up started getting dressed and had trouble 
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dressing, then, again, we’re back to the day 

before or the night before when he went to 

bed. I think my problem is -- and then 

Dr. Modi has another history. The triage nurse 

has a different history, saying he had 

numbness in his face as opposed to trouble 

dressing. As an expert, I don’t know which 

one I can say with certainty is the correct one. 

I think part of the problem with this case, quite 

frankly, is we’ve got literally five or six 

different renditions of what transpired, which, 

of course, makes it very difficult to pin down 

an exact time the stroke began and what the 

exact symptoms were because we have 

conflicting information.

Q[.] How does an inability to identify the onset of 

the symptoms impact a patient’s candidacy for 

IV tPA?

A[.] Well, you have to have either one of two 

things. You either have to witness, you know, 

and know for sure the moment the symptoms 

begin, which this is called a witness onset, and 

that’s the time that you take. You have a 

maximum of either three or four and a half 

hours to give the medication, depending on the 

particular person’s circumstances, so that’s 

when the sort of clock, if you will, starts to 

tick. When it’s an unwitnessed onset of stroke 

symptoms, then you have to take the time that 

the person was last definitely known to be well 

as opposed to the first time they were found to 

be unwell. 

Id. at 32-33.

Dr. Gebel also testified that tPA therapy can be dangerous if 

administered to a patient who is not having a stroke:

Q[.] Doctor, the jury has heard from a number of 

witnesses that you need to have a confirmed 

diagnosis of a stroke and you need a confirmed 
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onset of symptoms for giving intravenous tPA. 

Are those rules or guidelines that you 

subscribe to?

A[.] Oh, certainly. I mean, if you’re not sure the 

person is having a stroke, you don’t want to 

give them tPA, because it has a 6.4 percent 

chance of causing hemorrhaging in the brain, 

serious hemorrhaging that causes damage and 

symptoms, if it’s given within three hours. 

Then if it’s given within the three to four and a 

half hours, what we call the bonus or extended 

time window, that number goes up to 

8.9 percent. You can’t take a medication that 

has a 6 to 9 percent chance of causing 

hemorrhaging in the brain and give it to 

someone unless you’re pretty darn sure they’re 

having a stroke. If you think someone is 

having a seizure or some other condition or 

you’re not sure or you’re not sure when the 

stroke began, you know, you don’t want to 

give it. Again, the sooner you give it the 

better it works. It’s a lot better if you give it 

within three hours than if you get past three 

hours and you’re getting out to that four and a 

half hour timeframe.

Id. at 35-36.

We now turn to appellant’s arguments on appeal. First, appellant 

contends that the trial court erred by allowing Dr. Jaffe and Dr. Gebel to 

testify that appellant suffered a “wake-up stroke” without providing the 

specific references required under Pennsylvania Rules of Evidence 702, 703, 

704, and 705. (Appellant’s brief at 16.) According to appellant, Dr. Modi’s 

failure to consult with a neurologist or the stroke team resulted in 

“pure speculation” as to whether or not appellant would have received tPA 

therapy. (Id. at 16-17.)
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Rules 702 through 705, upon which appellant relies, provide as 

follows:

A witness who is qualified as an expert by 

knowledge, skill, experience, training, or education 

may testify in the form of an opinion or otherwise if:

(a) the expert’s scientific, technical, or other 

specialized knowledge is beyond that 

possessed by the average layperson;

(b) the expert’s scientific, technical, or other 

specialized knowledge will help the trier 

of fact to understand the evidence or to 

determine a fact in issue; and

(c) the expert’s methodology is generally 

accepted in the relevant field.

Pa.R.E. 702.

An expert may base an opinion on facts or data in 

the case that the expert has been made aware of or 

personally observed. If experts in the particular field 

would reasonably rely on those kinds of facts or data 

in forming an opinion on the subject, they need not 

be admissible for the opinion to be admitted.

Pa.R.E. 703.

An opinion is not objectionable just because it 

embraces an ultimate issue.

Pa.R.E. 704.

If an expert states an opinion the expert must state 

the facts or data on which the opinion is based.

Pa.R.E. 705.

Accordingly, Kozak [v. Struth, 531 A.2d 420 (Pa. 

1987),] requires disclosure of the facts used by the 

expert in forming an opinion. The disclosure can be 
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accomplished in several ways. One way is to ask the 

expert to assume the truth of testimony the expert 

has heard or read. Kroeger Co. v. W.C.A.B., 101 

Pa. Cmwlth. 629, 516 A.2d 1335 (1986); Tobash v. 

Jones, 419 Pa. 205, 213 A.2d 588 (1965). Another 

option is to pose a hypothetical question to the 

expert. Dietrich v. J.I. Case Co., 390 Pa. Super. 

475, 568 A.2d 1272 (1990); Hussey v. May 

Department Stores, Inc., 238 Pa. Super. 431, 357 

A.2d 635 (1976).

Id., Comment.

As detailed above, the evidence as to the onset of appellant’s 

symptoms was conflicting and confusing, at best. However, there was 

evidence to support the conclusion that appellant suffered a “wake-up 

stroke,” including the neurologist’s history that as soon as appellant woke up 

he had trouble getting dressed and his girlfriend’s statement that he was not 

acting like himself the evening prior. It is true, as appellant points out, that 

there was contrary evidence that his symptoms did not begin until after he 

awoke at 10:00 a.m. and tried to pick up a photograph off the floor. 

However, as Dr. Jaffe testified, the fact that it was impossible to pinpoint 

precisely when appellant’s symptoms began meant that he was not a 

candidate for tPA:

I think nothing’s real exact in this case and I think 

that’s the whole problem with this case and why he 

wasn’t a good candidate for IV tPA. There is [sic] all 

sorts of symptoms all over the place. There is [sic] 

all sorts of different times waking up. There is [sic] 

all sorts of things the night before. There is [sic] 

different timings in all these records, which does 

happen in the medical record, unfortunately, but I 

think this builds towards my opinion, as a reasonable 
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physician, that there is no way to exactly time what’s 

going on here.

Notes of testimony, 7/10/14 at 79.

The defense experts’ opinions were based on the medical records and 

were not “pure speculation” as appellant suggests; rather, they testified that 

even if Dr. Modi had correctly diagnosed an ischemic stroke, appellant would 

not have received tPA therapy because it was impossible to determine the 

onset of his symptoms. If appellant’s stroke began the night before, as 

suggested by his girlfriend, or he had suffered a stroke sometime during the 

night, tPA therapy would have been ineffective and perhaps even dangerous. 

Furthermore, both Dr. Jaffe and Dr. Gebel were causation experts. They 

were not called to testify on the standard of care. The jury never reached 

the issue of causation because they found Dr. Modi was non-negligent. 

Next, appellant claims that the trial court erred by allowing Dr. Gebel 

to be “converted” from a Pa.R.C.P. 4010 IME expert into a Pa.R.C.P. 4003.5 

liability expert. (Appellant’s brief at 17.) According to appellant, an IME is 

limited to the issue of damages and there is no case law permitting a 

Rule 4010 damages expert to testify as a Rule 4003.5 liability expert. (Id.

at 20-24.) 

Rule 4010 provides, in relevant part, as follows:

(a)(1) As used in this rule, “examiner” 

means a licensed physician, 

licensed dentist or licensed 

psychologist.
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(2) When the mental or physical 

condition of a party, or of a person 

in the custody or under the legal 

control of a party, is in 

controversy, the court in which the 

action is pending may order the 

party to submit to a physical or 

mental examination by an 

examiner or to produce for 

examination the person in the 

party’s custody or legal control.

(3) The order may be made only on 

motion for good cause shown and 

upon notice to the person to be 

examined and to all parties and 

shall specify the time, place, 

manner, conditions and scope of 

the examination and the person or 

persons by whom it is to be made.

(4)(i) The person to be examined 

shall have the right to have 

counsel or other 

representative present 

during the examination. 

The examiner’s oral 

interrogation of the person 

to be examined shall be 

limited to matters 

specifically relevant to the 

scope of the examination.

Note: Ordinarily, the facts 

giving rise to liability are 

not germane to an 

examination and the 

information which the 

examiner seeks should be 

limited to facts of liability 

germane to the issue of 

damages.

Pa.R.C.P. 4010.
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Rule 4003.5 provides, in relevant part, as follows:

(a) Discovery of facts known and opinions held by 

an expert, otherwise discoverable under the 

provisions of Rule 4003.1 and acquired or 

developed in anticipation of litigation or for 

trial, may be obtained as follows:

(1) A party may through 

interrogatories require

(A) any other party to identify 

each person whom the 

other party expects to call 

as an expert witness at 

trial and to state the 

subject matter on which 

the expert is expected to 

testify and

(B) subject to the provisions 

of subdivision (a)(4), the 

other party to have each 

expert so identified state 

the substance of the facts 

and opinions to which the 

expert is expected to 

testify and a summary of 

the grounds for each 

opinion. The party 

answering the 

interrogatories may file as 

his or her answer a report 

of the expert or have the 

interrogatories answered 

by the expert. The 

answer or separate report 

shall be signed by the 

expert.

(3) A party may not discover facts 

known or opinions held by an 

expert who has been retained or 

specially employed by another 
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party in anticipation of litigation or 

preparation for trial and who is not 

expected to be called as a witness 

at trial, except a medical expert as 

provided in Rule 4010(b) or except 

on order of court as to any other 

expert upon a showing of 

exceptional circumstances under 

which it is impracticable for the 

party seeking discovery to obtain 

facts or opinions on the same 

subject by other means, subject to 

such restrictions as to scope and 

such provisions concerning fees 

and expenses as the court may 

deem appropriate.

(c) To the extent that the facts known or opinions 

held by an expert have been developed in 

discovery proceedings under subdivision (a)(1) 

or (2) of this rule, the direct testimony of the 

expert at the trial may not be inconsistent with 

or go beyond the fair scope of his or her 

testimony in the discovery proceedings as set 

forth in the deposition, answer to an 

interrogatory, separate report, or supplement 

thereto. However, the expert shall not be 

prevented from testifying as to facts or 

opinions on matters on which the expert has 

not been interrogated in the discovery 

proceedings.

Pa.R.C.P. 4003.5.

Here, Dr. Gebel testified that he was retained to perform an IME of

appellant and also to prepare an expert report pursuant to Rule 4003.5. 

(Notes of testimony, 7/18/14 at 8.) Appellant was transported to Ohio for 

the IME, and Dr. Gebel gave appellant a copy of his notes from the exam. 

(Id. at 9, 11-12.) It is undisputed that appellant was also provided with a 
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copy of Dr. Gebel’s May 16, 2014 expert report as required by Rule 4003.5 

and that he testified consistently with that report. While it is true that the 

purpose of an IME is to assess damages, appellant cites no case law for the 

proposition that an IME expert is precluded from also testifying as to liability. 

There is nothing to suggest that Rules 4010 and 4003.5 are mutually 

exclusive. This claim fails. The trial court did not err in permitting Dr. Gebel 

to testify as to both causation and damages, consistent with his report.4

Next, appellant argues that Dr. Gebel failed to comply with Rules 702 

through 705 and that defense counsel should have used hypothetical 

questions. (Appellant’s brief at 25.) According to appellant, Dr. Gebel’s 

opinion testimony was based upon “speculation” that appellant was having a 

stroke the night before he reported to the ER. (Id. at 26.) Appellant 

contends that what the stroke team may or may not have done had Dr. Modi 

correctly diagnosed a stroke is speculation. (Id.)

While Rule 705 permits the use of hypothetical questions, they are not 

required. Pa.R.E. 705, Comment. All that is required is that the expert 

disclose the facts used in forming his or her opinion. Id. Here, Dr. Gebel 

based his opinion on all of the medical records and the testimony, including 

Ms. Shenk’s statement that appellant was not acting normally the night 

before and the Pinnacle Health neurologist’s report that when he woke up 

 

4 Again, we note that the jury never reached the issues of causation or 

damages, since they found Dr. Modi was not negligent.
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the next morning, appellant had difficulty getting dressed. Dr. Gebel 

testified that in his expert opinion, appellant would not have been a good 

candidate for IV tPA therapy based on the uncertainty of when the stroke 

began. Therefore, Dr. Gebel’s testimony was not based on mere 

“speculation” as appellant contends. 

Appellant also argues that Dr. Gebel gave standard of care testimony 

in violation of the pre-trial agreement and that Dr. Gebel’s opinion ignored 

undisputed evidence that appellant’s symptoms did not manifest themselves 

until 10:15 a.m. on April 8, 2012. (Appellant’s brief at 27-31.) Dr. Gebel 

did not give standard of care testimony. He and Dr. Jaffe were called solely 

to provide testimony on the issues of causation and damages. (Trial court 

opinion, 4/7/16 at 5-6.) In fact, appellant opened the door to standard of 

care testimony during his cross-examination of Dr. Gebel: 

Q[.] If we now turn to table 9. Is this what an 

emergency room is supposed to do?

A[.] Well, again, this is -- if you’re suspecting 

someone is having an acute ischemic stroke --

that’s the kind, again, where a clot cuts off 

circulation to the brain as opposed to a 

hemorrhage in the brain -- these are the tests 

that are recommended for patients with a 

suspected acute, meaning recent, ischemic 

stroke, yes, sir.

Q[.] Let’s start at the top.

A[.] Sure.

MR. CHAIRS: Judge, I would like to object at this 

point. He asked specifically is this what an 
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emergency room is supposed to do. Dr. Gebel has 

been very clear with the Court that he is not here to 

testify to standards of care.

MR. ANGINO: My gosh, he has testified completely 

as to this being not a candidate for tPA. This is 

exactly in that area. 

THE COURT: All right. I’ll overrule the objection, 

but that opens it up for redirect. 

MR. ANGINO: Absolutely.

Notes of testimony, 7/18/14 at 49-50.

Furthermore, contrary to appellant’s argument on appeal, there was 

not an undisputed “witness onset” time of 10:15 a.m. (Appellant’s brief at 

31.) Ms. Shenk indicated that appellant’s symptoms could have begun as 

early as the evening of April 7, 2012. Appellant told the neurologist on 

April 12, 2012, that he woke up on April 8th with symptoms including 

difficulty getting dressed and facial numbness. As thoroughly set forth 

above, Dr. Gebel and Dr. Jaffe testified that, given the conflicting evidence 

as to timing of onset of appellant’s symptoms, it was impossible to pinpoint 

with any certainty when appellant’s stroke began. Therefore, appellant was 

not a candidate for tPA catheter-based therapy, even if Dr. Modi had 

diagnosed a stroke as opposed to Bell’s palsy. These opinions were based 

on the evidence of record. Dr. Gebel and Dr. Jaffe were not required to 

accept testimony that appellant’s symptoms began at 10:15 a.m. when he 

attempted to pick up the photograph and had difficulty drinking his coffee, 
J. A25007/16

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when other evidence indicated that appellant’s symptoms began earlier, 

perhaps even the previous evening. 

Finally, appellant argues that Dr. Jaffe was permitted to give 

emergency room standard of care testimony in violation of a pre-trial order 

and that he violated Rule 705 by testifying from the “totality” of the 

evidence where the evidence was in conflict. (Appellant’s brief at 32-40.)

The trial court granted appellant’s motion in limine to limit Dr. Jaffe’s 

testimony to a discussion of diagnosis of stroke, the use and efficacy of tPA 

therapy, and whether appellant would have been a candidate for tPA or 

other catheter-based therapy for an acute stroke. (Trial court opinion, 

4/7/16 at 6.) Dr. Jaffe is not an emergency room physician and did not 

testify regarding the standard of care for an emergency room physician. 

(Id.) Appellant points to Dr. Jaffe’s testimony that in his opinion as a 

physician who cares for stroke patients, Dr. Modi did a complete neurological 

examination and acted in a medically reasonable fashion. (Notes of 

testimony, 7/10/14 at 63-64.) However, as explained by the trial court, 

“The statement . . . refers to the standard of care applicable to physicians 

responsible for the diagnosis of stroke. Dr. Jaffe’s experience treating stroke 

patients every day qualified him to testify to the standard of care which is 

observed by physicians diagnosing stroke.” (Trial court opinion, 4/7/16 at 6, 
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n.45.) Dr. Jaffe did not violate the pre-trial motion in limine by testifying to 

the standard of care for an emergency room physician.5

Appellant also argues that under Rule 705 and Kozak, an expert 

witness must provide the case-specific factual basis for his or her opinion, 

and cannot endorse a particular version of contradictory evidence, which is 

for the jury. (Appellant’s brief at 39-40.) 

For over a century, we have consistently held that an 

expert’s comment on the totality of the evidence, 

where the evidence is in conflict, improperly 

impinges upon the jury’s exclusive province. In 

1885, Mr. Justice Green declared that “[t]he [expert] 

witness can not be asked to state his opinion upon 

the whole case, because that necessarily includes the 

determination of what are the facts, and this can 

only be done by the jury.” Yardley v. 

Cuthbertson, 108 Pa. 395, 450, 1 A. 765, 773 

(1885). Following Yardley, a litany of decisions 

have reiterated the principle that an expert cannot 

weigh contradictory evidence and place his 

imprimatur upon a particular version. Our general 

commitment to the sanctity of the jury’s role as 

factfinder was recently re-emphasized in 

Commonwealth v. Seese, 512 Pa. 439, 517 A.2d 

920 (1986).

Kozak, 531 A.2d at 422-423 (additional citations omitted).

Appellant simply repeats many of the same arguments made with 

respect to Dr. Gebel. Again, Dr. Jaffe’s testimony indicates that he did not 

adopt any particular version of competing evidence. Indeed, the whole point 

 

5 We also note that David J. Karras, M.D., Dr. Modi’s standard of care 

expert, testified that Dr. Modi met the standard of care for an emergency 

room physician. (Id. at 8.) The jury apparently agreed, since they did not 

reach the issues of causation and damages.
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was that with all of the contradictory versions of when appellant first 

exhibited symptoms of a stroke, it would be impossible to determine the 

time of onset which would exclude appellant as a candidate for tPA therapy. 

Dr. Jaffe testified on cross-examination when questioned regarding 

Ms. Shenk’s statement that appellant was having trouble drinking his coffee 

on the morning of April 8, 2012, followed by left-sided facial weakness and 

slurring of his speech, as follows:

And this is exactly what I’m saying. Is that, 

sometimes histories can be extremely inaccurate and 

people get mixed things from different people. They 

don’t always get the accurate history. And that’s the 

whole problem with giving IV tPA. It seems like 

everything here is a bit of a mishmash. I, as a 

physician, evaluating this see a lot of different 

stories and I don’t know exactly what’s going on 

here. I don’t know the exact timing of this. The 

symptoms are somewhat vague. And I’ve got to be 

honest with you, this is why people don’t give IV tPA.

Notes of testimony, 7/10/14 at 78-79. On redirect, Dr. Jaffe testified that 

the nursing triage note from Holy Spirit, indicating that appellant awoke that 

morning at 10 a.m. with numbness in the left side of his face, as well as the 

neurologist’s report from Pinnacle Health, which stated that appellant woke 

up on April 8th with numbness in his left upper extremity, difficulty getting 

dressed, facial numbness and drooling out of the left side of his mouth, were 

consistent with his opinion that, at best, appellant suffered a “wake-up 

stroke” which would rule out tPA therapy. (Id. at 83-86.) As such, this is a 

case where the contradictory nature of all the evidence supports the expert’s 
J. A25007/16

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opinion regarding lack of causation. Appellees’ experts did not have to 

accept any particular version of conflicting evidence in order to render an 

opinion. The fact that appellant disagreed with their conclusions did not 

make them inadmissible.

For these reasons, we determine that the trial court did not err in 

denying appellant’s motion for a new trial.

Judgment affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/22/2016