J-A18034-23

2023 PA Super 230

BRENDA HUTCHINSON AND 

DOUGLAS HUTCHINSON 

Appellants

v.

THIERRY C. VERSTRAETEN, M.D.; E. 

RONALD SALVITTI, M.D., INC., 

INDIVIDUALLY, D/B/A 

SOUTHWESTERN PENNSYLVANIA EYE 

CENTER, A FICTITIOUS NAME, AND 

D/B/A SOUTHERN PENNSYLVANIA 

EYE SURGERY CENTER, A 

FICTITIOUS NAME; AND ALLEGHENY 

OPHTHALMIC & ORBITAL 

ASSOCIATES, P.C.

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 886 WDA 2022

Appeal from the Judgment Entered July 26, 2022

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

No(s): 2018-175

BEFORE: BENDER, P.J.E., LAZARUS, J., and KUNSELMAN, J.

OPINION BY KUNSELMAN, J.: FILED: November 8, 2023

Brenda and Douglas Hutchinson appeal from the judgment entered on 

the jury’s defense verdict in favor of Dr. Thierry C. Verstraeten, M.D.; E. 

Ronald Salvitti, M.D., Inc.; and Allegheny Ophthalmic & Orbital Associates, 

P.C. (“the Eye Clinic”). The Hutchinsons challenge the trial court’s ruling that 

barred one of their experts from testifying at the jury trial. Because the 

Hutchinsons’ arguments do not establish an abuse of discretion, we affirm.

The Hutchinsons sued the Eye Clinic for medical malpractice, based on 

vicarious liablity and corporate negligence. They alleged that Dr. Verstraeten 
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blinded Ms. Hutchinson’s right eye by improperly injecting fluid into it. The 

Hutchinsons claimed the Eye Clinic then altered Ms. Hutchinson’s medical 

records to conceal Dr. Verstraeten’s mistake. They rooted that claim in the 

testimony of Jessica Page, a self-described “expert in Health Information 

Technology (HIT) and Operations.” Hutchinsons’ Renewed Motion for 

Sanctions, Ex. 2 at 1. 

According to the Hutchinsons, the parties vociferously disputed the 

accuracy of Ms. Hutchinson’s medical records. The doctor and his scribe 

testified that the March 3, 2016 medical record documented an injection into 

Ms. Hutchinson’s eyeball, rather than below it. The Eye Clinic’s health 

insurance billing statement also confirmed billing and payment for an injection 

into Ms. Hutchinson’s eyeball. Thus, it was the Hutchinsons’ position that the

injection had gone into Ms. Hutchinson’s eyeball, which occluded her Central 

Retinal Artery and blinded the eye. Dr. Verstraeten maintained he did not 

inject the fluid directly into Ms. Hutchinson’s eyeball. 

The Hutchinsons claimed that someone had altered Ms. Hutchinson’s

March 3, 2016 medical record to add or modify documentation after the fact. 

This prompted the Hutchinsons to hire Ms. Page as their expert witness. As 

the Hutchinsons claim in their brief:

Ms. Page had years of experience managing ophthalmological 

practices. She also had significant experience and specialized 

training on the ophthalmological practice software used by [the 

Eye Clinic]—Medflow . . . Ms. Page authored three detailed reports 

about alterations to Mrs. Hutchinson’s medical record.
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Ms. Page’s opinions and the ongoing contentious debates 

over this alteration issue were based primarily upon the 

completeness of [the Eye Clinic’s] proffered electronic medical 

record audit trail (sometimes referred to generally as “the audit 

trail”). The audit trail is a representation of the electronic medical 

record. It should show, among other data points, who accessed 

the records, where and when the records were accessed, and

whether changes were made to the records.

Hutchinsons’ Brief at 10-11 (citation to the reproduced record and footnotes 

omitted).

The Hutchinsons believed the Eye Clinic had altered Ms. Hutchinson’s 

medical records, after her eye injury. They filed a motion to compel the 

production of a complete and unredacted audit trail of the medical records, 

which the trial court granted. The Hutchinsons further claimed the Eye Clinic’s

first production of an audit trail was incomplete. After they moved for 

sanctions, the Eye Clinic produced two more audit trails, but, according to the 

Hutchinsons, those trails were also incomplete. 

The Hutchinsons then claimed that there were other alterations to the

medical record. One such alleged alteration was a handwritten alteration of

an earlier injection into Ms. Hutchinson’s eyeball changed to one under her 

eyeball by an office employee who had not participated in the care. The trial 

court eventually granted the Eye Clinic’s motion in limine to exclude this 

evidence, because it ruled the evidence to be irrelevant.

Ultimately, Ms. Page provided a final report, wherein she outlined all the 

evidence of the Eye Clinic’s opinions on the alleged alteration of the electronic 
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and handwritten medical record. The Hutchisons summarized her opinions as 

follows:

- Missing Entries from the Standard Medflow 

Audit Trail

- Alterations in the Exported Medflow Audit Log

- Impossible Reporting Constraints for [the Eye 

Clinic’s] Production of the 7/14/21 Audit Report

- Unexplained lengthy entries into Ms. 

Hutchinson’s medical record by non-care 

providers of the Clinic

- Inappropriate corrections to and alterations of 

Ms. Hutchinson’s paper records

- EMR Alterations of the March 3, 2016 office visit

- Invalid electronic signatures of the Doctor

Hutchinsons’ Brief at 15 (citation to the reproduced record and footnotes 

omitted).

A few days before trial, the Eye Clinic filed a motion in limine to preclude 

Ms. Page’s testimony, which the trial court granted. Opining from the bench, 

the court said:

the issue of the complete audit trail and the issues related to 

discovery with the electronic record, in my mind, is a complete 

separate and distinct issue [from the poor record-keeping of the 

Eye Clinic]. When and who accessed the records and so on, at 

this stage, really, is irrelevant.

And no evidence exists that anyone altered the record that 

helped the [Eye Clinic] or to divert the [Hutchinsons’] attention to 

something that would damage the Plaintiff or to – yeah, to bolster 

the [Hutchinsons’] case or to hurt the [Eye Clinic]. This whole 

issue on the audit trail at this point I find is irrelevant and is only 

going to cause confusion to the jury.
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Further, after reading Jessica Page’s -- all three reports --

but particularly the last one, she goes way beyond her expertise 

in handwriting and standard of care and what she does in her 

practice, which she is really not -- she is not qualified to do.

So, in light of everything, I am going to preclude the 

testimony of Jessica Page.

N.T., 8/12/21, at 161-62.

The matter proceeded to a jury trial, and the jurors ruled Dr. Verstraeten

had acted within the standard of care. The jury also determined there was no 

corporate negligence by the Eye Clinic. The Hutchisons moved for post-trial 

relief, which the trial court denied. This timely appeal followed.

The Hutchisons raise three issues. They are:

1. Did the [trial] court err when it excluded the relevant 

testimony of [Ms. Page]?

2. Did the [trial] court err by precluding critical relevant 

evidence to establish grounds for an adverse inference 

related to the intentional alteration and/or destruction of the 

plaintiffs’ medical record?

3. Did the [trial] court err by precluding critical relevant 

evidence to establish grounds for a spoliation and/or 

punitive damages jury charge?

Hutchinsons’ Brief at 5.

As the Hutchinsons’ framing of issues indicates, they misunderstand our

deferential standard of review for an evidentiary ruling, such as the one they 

now challenge on appeal. The issue for an appellant, when challenging a trial 

court’s evidentiary ruling, is not – as the Hutchinsons claim and argue in their 

brief – whether the trial court committed an “error.” Instead, the proper 

framing of the appellate issue is whether the trial court committed an abuse 
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of discretion. As we explain, the Hutchisons never make an abuse-ofdiscretion argument anywhere in their brief. Thus, we dispose of all their

appellate issues simultaneously.

At the outset of their brief, the Hutchinsons correctly acknowledge that 

“Questions that involve the relevancy of evidence are within the sound 

discretion of the trial court.” Id. at 3 (citing Cohen v. Albert Einstein 

Medical Center, 592 A.2d 720, 725 (Pa. Super. 1991)). They then state, 

“The unjustified exclusion of relevant evidence that is otherwise admissible, 

however, is an abuse of that discretion.” Id. The Hutchinsons again cite 

Cohen for that proposition. See id. Without citing any authority, the Cohen

panel did, in fact, say, “the unjustified exclusion of relevant evidence, 

otherwise admissible, is an abuse of discretion.” Cohen at 725.

However, if that statement from Cohen were correct, this Court would 

review a trial court’s relevancy determinations de novo. Under the Cohen

standard of review, a mere difference of opinion between this Court and the 

trial court as to what constitutes relevant evidence would also constitute an 

abuse of discretion. Indeed, a close reading of Cohen reveals that the panel 

reviewed the case’s evidence de novo and substituted its relevancy judgments 

of the evidence to reverse the trial court and award the hospital a new trial.

Cohen involved a hospitalized woman who supposedly suffered from 

Munchausen’s Syndrome, the “repeated fabrication of illness, usually acute, 

dramatic and convincing.” Id. at 724 (quoting MERCK MANUAL, 15th Ed., 1987) 

(some punctuation omitted). Ms. Cohen claimed that, on her second or third 
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day in the hospital, an unknown nurse administered an injection into her arm 

to treat arthritis. She “felt a shock run down her arm and into her hand and 

fingers. Thereafter, her left hand dropped uselessly at the wrist.” Id. at 722. 

Despite this adverse result, Ms. Cohen “did not report to anyone the 

sudden pain and disability, and the hospital records [did] not contain any 

reference to the injection.” Id. A week later, a doctor first noted “a left wrist 

drop of unknown etiology.” Id. (quotation omitted). The condition lasted four 

years, and she eventually had surgery to alleviate the pain and disability. Her 

surgeon found “scarring of Ms. Cohen’s radial nerve . . . .” Id. She sued the 

hospital whose unidentified nurse had allegedly performed the arm injection.

As part of its defense, the hospital wished to call “a forensic psychiatrist 

[to testify] that he had reviewed [Ms. Cohen’s] voluminous medical records 

and was of the opinion that she suffered from Munchausen’s Syndrome.” Id.

at 725. Based on his testimony, the hospital wanted to argue to the jury that,

“because of [Ms. Cohen’s alleged] psychiatric illness she had either fabricated 

her injury or produced it herself during a drug-induced stupor by leaning on 

her arm and compressing it against a hard surface, thereby placing pressure 

on the nerve.” Id. at 724. Ms. Cohen objected to the expert’s testimony on 

the grounds that it was irrelevant, would confuse the jury by adding issues of 

her mental health to the trial, would call for speculation, and would exceed 

the psychiatrist’s expertise. The trial court agreed on all points and precluded 

him from testifying. The jury returned a verdict in favor of Ms. Cohen. 
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On appeal, the Cohen panel initially said: “Questions pertaining to the 

relevancy of evidence are within the sound discretion of the trial court, and 

the [trial] court’s rulings thereon will be reversed on appeal only where there 

has been an abuse of discretion and actual prejudice.” Id. at 725 (citing 

Lewis v. Mellor, 393 A.2d 941, 944 (Pa. Super. 1978), Westerman v. 

Stout, 335 A.2d 741, 745 (Pa. Super. 1975), and Pirches v. General 

Accident Insurance Co., 511 A.2d 1349, 1351 (Pa. Super. 1986)). 

However, the panel failed to define an abuse of discretion. Instead, Cohen

converted the abuse-of-discretion review into a de novo review by announcing 

that “the unjustified exclusion of relevant evidence, otherwise admissible, is 

an abuse of discretion.” Id. at 725. This circular statement transformed the 

underlying relevancy judgment into the linchpin for an abuse of discretion. By

doing so, Cohen eliminated any discretion for the trial court’s decision.

Thereafter, the Cohen Court mostly ignored the trial court’s analysis of 

the relevancy issue and replaced it with its own. Indeed, it only paraphrased 

the trial court’s reasoning and reduced its logic to a caricature. Then, after 

quoting the rules on relevancy, Cohen decreed:

In the instant case, the general exclusion of all evidence regarding 

Munchausen’s Syndrome deprived the jury of information which 

was relevant to assist it in weighing the credibility of [Ms. Cohen’s]

testimony regarding the injection and subsequent injury. The 

evidence was also relevant to a determination of [her] damages. 

Id. This conclusory language is the product of a de novo review, where an 

appellate court substitutes its judgment for that of the trial court. 
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Absent from Cohen is any discussion of how or why the trial court’s 

reasoning was flawed. There is no contention that the trial court illogically 

balanced the value of the expert’s testimony against its likelihood of confusing 

the jury or creating a trial on Ms. Cohen’s mental health within the trial on the 

hospital’s malpractice. The panel instead said that introducing Ms. Cohen’s 

“medical history would admittedly have increased the complexity of this 

already difficult case, but a trial court’s chief concern must be to allow the jury 

to hear all evidence relevant to the issue being decided and to exclude only 

that evidence which is inadmissible, as a matter of law, or which is unduly 

prejudicial.” Id. 

If this were true, a trial court could never exclude technically relevant 

evidence that would likely confuse the jury or produce a trial within the trial. 

This is not the law. 

As this Court more recently held, “admissibility or exclusion of evidence 

are subject to the abuse-of-discretion standard of review.” Rohe v. Vinson, 

158 A.3d 88, 95 (Pa. Super. 2016), appeal denied, 176 A.3d 851 (Pa. 2017). 

Additionally, the Supreme Court of Pennsylvania has explained, “An appellate 

court cannot find an abuse of discretion merely for an error of judgment,

unless, in reaching a conclusion, the trial court overrides or misapplies the 

law; or its judgment is manifestly unreasonable; or the evidence of record 

shows that the court’s judgment exercised is manifestly unreasonable or 

lacking in reason.” Commonwealth v. Baker, 766 A.2d 328, 331 (Pa. 2001). 

Thus, the de novo review which the Cohen Court performed cannot be 
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squared with the more recent pronouncements of the Supreme Court and its 

directives that we defer to a trial court’s evidentiary determinations.

Also, in the 32 years since Cohen, no appellate-court majority has cited 

to it for the proposition upon which the Hutchinsons now rely. Hence, the 

notion that a trial court commits a de facto abuse of discretion by excluding

evidence that this Court deems to be relevant is not firmly rooted in our 

precedents. The only opinion to rely on Cohen for that proposition is a dissent 

from the Commonwealth Court. See Commonwealth v. Simpson, 2287 

C.D. 2009, 2010 WL 9516187 at *3 (Pa. Cmwlth. 2010) (unpublished), 

reargument denied, 4 A.3d 828 (2010), appeal denied, 23 A.3d 543 (Pa. 2011) 

(Cohn Jubelirer, J. dissenting; advocating for reversal of a trial court’s 

relevancy ruling in a criminal matter to grant defendant a new trial). That

dissent’s reliance on Cohen is not particularly compelling, nor does it 

persuade us that the exclusion-of-relevant-evidence statement from Cohen

survived the adoption of the Pennsylvania Rules of Evidence. 

We hold that the adoption of the Pennsylvania Rules of Evidence in May 

of 1998, seven years after Cohen, abrogated the statement that “the 

unjustified exclusion of relevant evidence, otherwise admissible, is an abuse 

of discretion.” Cohen, 592 A.2d at 725. Under the Rules of Evidence, courts

of common pleas enjoy broad discretion to determine whether evidence is 

relevant and whether its admission outweighs the risk of confusing the jury. 

See Pa.R.E. 401 and Pa.R.E. 403 (stating, “The court may exclude relevant 

evidence if its probative value is outweighed by a danger of one or more of 
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the following: unfair prejudice, confusing the issues, misleading the jury, 

undue delay, wasting time, or needlessly presenting cumulative evidence.”) 

Merely because an appellate court might have deemed evidence to be relevant 

in the first instance does not mean that a trial court abused its discretion by 

failing to admit that evidence. 

As such, the Hutchinsons’ reliance upon Cohen for their standard of 

review is misplaced.

1 Based on that reliance, they make a de novo argument, 

which is simply untenable under our abuse-of-discretion standard of review.

Abuse of discretion takes one of three forms. It “occurs if [(1) the trial 

court] committed an error of law; [(2) the court] exercised its judgment in a 

manifestly unreasonable manner; or [(3) the court’s] decision was the result 

of partiality, prejudice, bias or ill-will, as shown by evidence on the record.” 

Womer v. Hilliker, 908 A.2d 269, 273 (Pa. 2006).

Rather than explaining which type of abuse occurred, the Hutchinsons

argue why they believe the trial court should have denied the hospital’s motion

in limine, as if our standard of review were de novo. They contend Ms. Page’s 

testimony “was relevant.” Hutchinsons’ Brief at 26, 27. They then assert that 

____________________________________________

1 The trial court also quoted Cohen v. Albert Einstein Medical Center, 592 

A.2d 720 (Pa. Super. 1991), in its Rule 1925(a) Opinion for the appellate 

standard of review. See Trial Court Opinion, 11/1/22, at 6. The trial court’s 

reliance was equally misplaced for all of the above reasons. More importantly, 

a trial court’s interpretation of the appellate standard of review is not binding 

upon the appellate court. See, e.g., In re Wilson, 879 A.2d 199 (Pa. Super. 

2005), abrogated on other grounds by In re Ajaj, 288 A.3d 94 (Pa. 2023). 

In Wilson, we stated this Court reviews the applicable standard of review de 

novo.
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the trial court “should have” allowed her to testify and argue that the adverse 

ruling was “an error of law.” Id. at 26, 29. The Hutchinsons further claim 

that, if a trial court rules evidence is irrelevant, but the appellate court deems 

that evidence to be relevant, the trial court’s ruling is per se an abuse of 

discretion. In essence, the Hutchinsons invite us to substitute our relevancy 

judgment for that of the trial court, rather than defer to that court’s relevancy

ruling.

Even if we agreed with the Hutchinsons that the trial court “erred” when 

it made its relevancy ruling, Pennsylvania courts have long held that an “abuse 

of discretion is not merely an error of judgment, but rather a misapplication 

of the law or an unreasonable exercise of judgment.” Johnson v. Johnson, 

222 A.3d 787, 789 (Pa. Super. 2019) (emphasis added). The Hutchinsons do 

not explain how the trial court’s judgment was unreasonable. 

Moreover, when claiming an abuse of discretion, it is insufficient to 

convince us that “the lower tribunal reached a decision contrary to the decision 

that the appellate court would have reached.” B.B. v. Dep't of Pub. Welfare, 

118 A.3d 482, 485 (Pa. Cmwlth. 2015) (some punctuation omitted). Instead, 

an appellant must demonstrate one of the three abuses described above. See 

Womer, supra. Again, the Hutchinsons do not identify which types of abuse 

of the trial court supposedly committed, nor do they develop any argument 

based on those recognized forms of abuse.

As a result, they simply reargue the alleged relevancy of Ms. Page’s 

testimony de novo to this Court. Accordingly, the Hutchinsons have failed to 
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establish an abuse of discretion within the trial court’s discretionary judgments

that: 

no evidence exists that anyone altered the record that helped the 

[Eye Clinic] or to divert the [Hutchinsons’] attention to something 

that would damage the Plaintiff or to – yeah, to bolster the 

[Hutchinsons’] case or to hurt the [Eye Clinic]. This whole issue 

on the audit trail at this point I find is irrelevant and is only going 

to cause confusion to the jury.

Further, after reading Jessica Page’s -- all three reports --

but particularly the last one, she goes way beyond her expertise 

in handwriting and standard of care and what she does in her 

practice, which she is really not -- she is not qualified to do.

N.T., 8/12/21, at 161-62. 

In sum, the Hutchinsons have not argued – much less persuaded this 

Court – that an abuse of discretion occurred. We therefore dismiss their three 

appellate issues as meritless.

Judgment affirmed.

 11/8/2023