J-A11014-19

2020 PA Super 172

ELIZABETH H. LAGEMAN, BY AND 

THROUGH HER POWER OF 

ATTORNEY AND DAUGHTER, 

ADRIENNE LAGEMAN 

Appellant

v.

JOHN ZEPP, IV, D.O.; ANESTHESIA 

ASSOCIATES OF YORK, PA, INC.; 

YORK HOSPITAL; AND WELLSPAN 

HEALTH, T/D/B/A YORK HOSPITAL

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 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(s): 

2014-SU-000846-82

BEFORE: BOWES, J., OLSON, J., and STABILE, J.

OPINION BY BOWES, J.: FILED JULY 20, 2020

Elizabeth H. Lageman (“Mrs. Lageman”), by and through her daughter 

and attorney-in-fact, Adrienne Lageman, appeals from the May 10, 2018 

judgment in favor of John Zepp, IV, D.O. (“Defendant Zepp”), Anesthesia 

Associates of York, Pa., Inc. (“Anesthesia Associates”), and York Hospital in 

this medical malpractice case.

1

 After careful review, we vacate the judgment 

and remand for a new trial.

____________________________________________

1 The parties stipulated to the dismissal of all claims against WellSpan Health 

without prejudice on October 21, 2014.
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The pertinent facts are as follows. Mrs. Lageman was hospitalized at 

York Hospital on May 17, 2012, for a bowel obstruction. Two days later, she 

underwent an emergency exploratory laparotomy and lysis of adhesions. 

Defendant Zepp, a physician associated with defendant Anesthesia Associates, 

was the anesthesiologist for the surgery. Defendant Zepp’s responsibilities 

included the placement of a central line into Mrs. Lageman’s jugular vein to 

facilitate the administration of intravenous fluids during the surgery. 

Under the guidance of ultrasound, Defendant Zepp inserted a needle 

into what he believed was the jugular vein. He then slipped a small catheter 

over the needle. According to Defendant Zepp, he then used manometry to 

confirm that the catheter was in the vein. In performing manometry, the 

physician attaches a short piece of IV tubing to the small catheter and draws

blood into the tubing. Then the physician lifts up the tubing so that he can 

observe the level to which the blood falls. When the catheter is properly 

located in the vein, the blood is expected to fall to about three and one-half 

inches above the site, matching the level of the pressure in the central venous 

system. Defendant Zepp maintained that he used manometry to confirm 

proper placement of the small catheter in the vein, and that the result was 

consistent with pressure in the venous system. He then inserted the guide 

wire, followed by the dilator, and a large bore catheter seven inches into the 

vessel, and stitched it securely in place. 
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Prior to administering any fluids, Defendant Zepp passed the ultrasound 

transducer over the catheter. It revealed that the catheter was located in the 

carotid artery rather than in the jugular vein, a complication known as arterial 

cannulation. Defendant Zepp abandoned the jugular vein as a central line site 

and called in a vascular surgeon for assistance. Although the bowel surgery 

was successful, Mrs. Lageman sustained a stroke that left her paralyzed on 

her left side, which is one of the recognized risks of arterial cannulation. N.T. 

Jury Trial, 1/2-8/18, at 185-86; 313. 

Adrienne Lageman (“Plaintiff”) filed a complaint in medical negligence 

on her mother’s behalf in the Court of Common Pleas of York County against 

the above-named defendants. Plaintiff alleged that Defendant Zepp deviated 

from the standard of care in his performance of the central line procedure, 

and that his negligent cannulation of Mrs. Lageman’s carotid artery caused 

irreversible and permanent stroke injuries. Plaintiff asserted claims sounding 

in vicarious liability and corporate negligence against York Hospital and the 

Anesthesiology Associates. However, when trial commenced on January 2, 

2018, only vicarious liability claims based on the negligence of Defendant Zepp 

remained against the Hospital and Anesthesia Associates.

At trial, the following facts were undisputed. While Mrs. Lageman was 

sedated, Defendant Zepp inserted the central line into Mrs. Lageman’s carotid 

artery instead of her jugular vein. Mrs. Lageman’s carotid artery lay below 

the jugular vein. This anatomical orientation was obvious on ultrasound, and 
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while it made central line placement more difficult, “over fifty percent of 

patients over age sixty have the same orientation” as Mrs. Lageman, and 

Defendant Zepp was familiar with it. N.T. Jury Trial, 1/2-8/18, at 313. 

Dynamic ultrasound, if used properly, permitted the anesthesiologist to see 

the tip of the needle and increased the likelihood that it was in the vein rather 

than the artery. It was agreed by the medical experts and Defendant Zepp, 

that manometry, the technique whereby the pressure of the blood is measured 

prior to threading the wire, dilating, and inserting the large-bore catheter, is 

the “gold standard” for confirming that the small catheter is located in the vein 

rather than the artery. 

The experts agreed that it is rare that placement of a central line in the 

jugular vein results in cannulation of the carotid artery, a statistic supported 

by Defendant Zepp’s testimony that it had never occurred in the more than 

500 procedures he had performed. Additionally, Defendant Zepp and his 

expert, Dr. Hudson, as well as Plaintiff’s expert Dr. James M. Pepple, agreed 

that inadvertent arterial cannulation increases the risk of stroke. Although 

the defense did not concede that Mrs. Lageman’s stroke was caused by the 

arterial cannulation, it did not introduce evidence of any other responsible 

cause. According to Dr. Pepple, the neurologist’s notes ruled out other 

medical explanations for Mrs. Lageman’s stroke. 

In making out a prima facie case of negligence, Plaintiff pursued two 

avenues. She offered the expert testimony of Dr. Pepple, rendered to a 
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reasonable degree of medical certainty, that Defendant Zepp was negligent in 

the manner in which he used short-axis view ultrasound as he could not 

properly visualize the tip of the needle. Consequently, the expert opined,

Defendant Zepp was unaware that the needle had passed through the vein,

punctured and entered the underlying artery. Dr. Pepple also disputed that 

Defendant Zepp employed manometry, pointing out that its use was not noted 

on the anesthesia record. Dr. Pepple opined that cannulation of the artery 

increased the risk of stroke “exponentially,” which was the very harm that 

resulted. Thus, Plaintiff 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. 

In addition to offering proof of specific negligence on the part of 

Defendant Zepp, Plaintiff sought to avail herself of the inference afforded by 

the evidentiary doctrine of res ipsa loqitur, meaning literally, “the thing speaks 

for itself.” She introduced evidence calculated to establish the three elements 

necessary to invoke the inference. First, she offered the expert testimony of 

Dr. Pepple to the effect that, accepting Defendant Zepp’s version of how he 

performed the procedure, this event, i.e. arterial cannulation, would not 

ordinarily occur in the absence of negligence. She offered testimony from Dr. 

Pepple and Defendant Zepp to rule out other responsible causes for such an 
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event. Finally, it was undisputed that the alleged negligent central line 

placement was within the scope of Defendant Zepp’s duty to Mrs. Lageman.2 

Prior to submission of the case to the jury, Plaintiff presented a proposed 

point for charge on res ipsa loquitur. The trial court refused to give a res ipsa

instruction, stating that this was not the type of case where it was obvious 

that the doctrine applied. N.T. Jury Trial, 1/2-8/18, at 491. Thus, the jury 

was not instructed that it was permitted to infer that the harm suffered by 

Mrs. Lageman was caused by Defendant Zepp’s negligence. 

After six days of trial, the jury returned a verdict in favor of Defendants, 

specifically finding no negligence on the part of Defendant Zepp. Plaintiff filed 

a motion for post-trial relief, which the trial court denied on April 12, 2018, 

and this timely appeal followed. Both Plaintiff and the trial court complied 

with Pa.R.A.P. 1925, and the matter is ripe for our review. Plaintiff presents 

the following issues: 

A. Whether the trial court committed an error of law when it failed 

to give Plaintiff’s charge of Res Ipsa Loquitur during jury 

instructions?

B. Whether the trial court committed an error of law when it 

permitted the Defendants to perform a misleading 

demonstration before the jury?

C. Whether the trial court committed an error of law when it failed 

to correct or cure a misstatement in closing argument by 

____________________________________________

2

 We explore in detail infra the three elements that must be satisfied in order 

to invoke the res ipsa loquitur inference, and the evidence introduced by the 

Plaintiff to meet that threshold. 
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Defense counsel which also violated a prior Order of the trial 

court?

D. The Jury Verdict was against the evidence.

E. The Jury Verdict was against the weight of the evidence.

Appellant’s brief at 4. 

In reviewing the trial court’s denial of post-trial relief, generally our 

“scope of review is limited to determining whether the trial court committed a 

clear abuse of discretion or error of law controlling the outcome of the case.” 

Stewart v. Motts, 654 A.2d 535, 540 (Pa. 1995). Plaintiff alleges first that 

the trial court erred in refusing to give an instruction on res ipsa loquitur to 

the jury. 

In examining jury instructions, our scope of review is limited 

to determining whether the trial court committed a clear abuse of 

discretion or error of law controlling the outcome of the case. 

Error in a charge is sufficient ground for a new trial if the charge 

as a whole is inadequate or not clear or has a tendency to mislead 

or confuse rather than clarify a material issue. Error will be found 

where the jury was probably misled by what the trial judge 

charged or where there was an omission in the charge. A charge 

will be found adequate unless the issues are not made clear to the 

jury or the jury was palpably misled by what the trial judge said 

or unless there is an omission in the charge which amounts to a 

fundamental error. In reviewing a trial court’s charge to the jury, 

we must look to the charge in its entirety. Because this is a 

question of law, this Court’s review is plenary.

Passarello v. Grumbine, 87 A.3d 285, 296-97 (Pa. 2014) (quoting Quinby 

v. Plumsteadville Family Practice, Inc., 907 A.2d 1061, 1069-70 (Pa. 

2006)). A new trial will be required “if the charge as a whole is inadequate or 
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not clear or as a tendency to mislead or confuse rather than clarify a material 

issue.” Quinby, supra at 1069.

“Medical malpractice consists of a negligent or unskillful performance by 

a physician of the duties which are devolved and incumbent upon him on 

account of his relations with his patients, or of a want of proper care and skill 

in the performance of a professional act.” Vazquez v. CHS Prof'l Practice, 

P.C., 39 A.3d 395, 397-398 (Pa.Super. 2012) (quoting Quinby, supra at 

1070-71 (internal citations omitted)). As in negligence cases generally, in 

order to state a prima facie case, the plaintiff must demonstrate that the 

physician owed a duty to the patient, that he breached that duty, that the 

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

directly resulted. Id. (citing Hightower-Warren v. Silk, 698 A.2d 52, 54 

(Pa. 1997)). In most malpractice cases, other than those where the 

negligence is so obvious as to be within the common understanding of 

laypersons, a plaintiff will need a medical expert who will provide testimony 

meeting those elements. Id. 

Res ipsa loquitur is an evidentiary doctrine permitting the jury to infer 

negligence and causation from the mere occurrence of the event and the 

defendant’s relation to it. Our Supreme Court called it “a shorthand 

expression for circumstantial proof of negligence -- a rule of evidence.” 

Quinby, supra at 1071. The doctrine allows a plaintiff to “satisfy his burden 

of producing evidence of a defendant’s negligence by proving that he has been 
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injured by a casualty of a sort that normally would not have occurred in the 

absence of the defendant’s negligence.” Id. The Court added, “[t]he 

inference provides reasonable evidence, in the absence of an explanation by 

the [d]efendants, that the accident arose from their negligence.” Id. at 1076. 

The strength of the inference depends on the evidence presented, but ranges 

“from reasonable probability to practical certainty.” Id. Where different 

conclusions can be reached, it is the jury’s function to determine whether the 

inference is to be drawn. Id. 

The Restatement formulation of res ipsa loquitur was adopted by our 

Supreme Court in Gilbert v. Korvette's Inc., 327 A.2d 94 (Pa. 1974), and 

provides: 

(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.

(2) It is the function of the court to determine whether the 

inference may reasonably be drawn by the jury, or whether it 

must necessarily be drawn.

(3) It is the function of the jury to determine whether the 

inference is to be drawn in any case where different conclusions 

may reasonably be reached.

Restatement (Second) of Torts § 328D (1964). 
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Before a plaintiff can rely upon res ipsa loquitur, he must establish all 

three elements of § 328D(1) by producing “evidence which will permit the 

conclusion that it is more likely than not that her injuries were caused by the 

defendant's negligence.” Id. at § 328A. At that juncture, the trial court may 

look at all the evidence to determine if reasonable minds could reach different 

conclusions regarding the negligence of the defendant. If so, it is for the jury 

to determine whether to draw the inference. Our High Court also recognized 

in Quinby, supra at 1076, that “where exceptional circumstances give rise to 

an inference of negligence on the part of the defendant which is so strong that 

it cannot be rejected by reasonable individuals if not rebutted,” the court may 

direct a verdict in favor of plaintiff. “It is only when there is no issue of fact 

as to the existence of any of the conditions necessary in order to apply res 

ipsa loquitur that the court may withdraw the issue from the jury or direct the 

jury to draw the inference of negligence.” Id. As a comment to the 

Restatement explains:

The inference arising from a res ipsa loquitur case may . . . be 

destroyed by sufficiently conclusive evidence that it is not in 

reality a res ipsa loquitur case. If the defendant produces 

evidence which is so conclusive as to leave no doubt that the event 

was caused by some outside agency for which he was not 

responsible, or that it was of a kind which commonly occurs 

without negligence on the part of anyone and could not be avoided 

by the exercise of all reasonable care, he may be entitled to a 

directed verdict. 

Restatement (Second) of Torts § 328D cmt. o (1964). 
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Traditionally, res ipsa is associated with events that are within the 

common knowledge of laypersons and requiring no expert testimony to 

establish negligence and causation. Some examples of such events offered 

by the commentators to the Restatement are the fall of an elevator, or the 

escape of gas, water, or electricity from mains or wires, or train derailments. 

From the nature of such events, “the conclusion is at least permissible that 

such things do not usually happen unless someone has been negligent.” 

Restatement (Second) of Torts § 328D cmt. c; see also Fessenden v. 

Robert Packer Hosp., 97 A.3d 1225, 1227 (Pa.Super. 2014) (holding res

ipsa loquitur applicable where sponge left in abdomen following surgery

caused abdominal abscess and necessitated the removal of gallbladder and a 

portion of small bowel). 

In Jones v. Harrisburg Polyclinic Hospital, 437 A.2d 1134 (Pa. 

1981), our Supreme Court sanctioned the use of res ipsa in a complex medical 

negligence case.

3

 The plaintiff in Jones sustained suprascapular nerve palsy

____________________________________________

3

In considering whether it should permit section 328D res ipsa loquitur to be 

employed in medical malpractice cases, the Jones Court noted one 

commentator’s explanation for the reluctance to do so: 

It was early thought that this doctrine could have no application 

to medical science, because there are so many intangibles and 

uncertainties involved that the occurrence of a bad result could 

never justify an inference of negligence, and that all features of 

medical treatment could be interpreted and judged by physicians 

only. Gradually, however . . ., the courts in most states now 
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during a gynecological procedure. The Court recognized there was no fund of 

common knowledge from which laypersons could reasonably draw the 

inference of negligence, but permitted the inference when plaintiff offered 

uncontradicted expert medical testimony establishing that the condition did 

not ordinarily occur in such circumstances. See Restatement (Second) of 

Torts § 328D; see also Hightower-Warren, supra at 54 (plaintiff’s expert’s 

testimony that injury to left recurrent laryngeal nerve was the kind of event 

that does not occur in the absence of negligence under the operative 

conditions as described by defendant doctor and, after ruling out all other 

possible causes, opined to a reasonable degree of medical certainty that it 

occurred during the procedure at the hands of defendant, established first and

second prongs of res ipsa). Where medical evidence established that the

event would not ordinarily occur without negligence, the Court found no basis

for refusing to permit a jury to draw such an inference.

Herein, as in Jones and Hightower, “there is no fund of common 

knowledge from which laymen can reasonably draw the inference or 

conclusion of negligence.” Jones, supra at 1139. The proper way to insert 

____________________________________________

recognize that this doctrine does have its place in medical 

malpractice . . . .

Jones v. Harrisburg Polyclinic Hospital, 437 A.2d 1134, 1137 (Pa. 1981), 

quoting FALA, The Law of Medical Malpractice in Pennsylvania, 36 U. of Pitt. L. 

Rev. 203, 219 (1974).
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a central line into a jugular vein, and the consequences of errant placement 

in the artery are not within the common knowledge of laypersons. Thus, in 

order to proceed on a res ipsa theory, Plaintiff was required to introduce expert 

medical testimony that the event that occurred herein, arterial cannulation,

ordinarily would not have occurred absent negligence. In addition, she had to 

rule out other responsible causes for the event in order to meet the 

requirement of § 328D(1)(b). Finally, she had to establish that the negligence 

occurred within the scope of Defendant Zepp’s duty to Mrs. Lageman. 

Plaintiff contends that she met all three elements for application of the 

doctrine of res ipsa. She offered Dr. Pepple as an expert in central line 

placement, the use of ultrasound for central line placement, and anesthesia.

The procedure at issue involved placement of a central line in the internal 

jugular vein in the right side of the neck. N.T. Jury Trial, 1/2-8/18, at 221. 

The expert rendered an opinion, to a reasonable degree of medical certainty,

that Defendant Zepp’s cannulation of the artery, i.e., insertion of the large 

bore catheter seven inches into the carotid artery instead of the jugular vein,

was negligent. Id. at 220. In his expert opinion, Defendant Zepp’s placement 

of the catheter into the carotid artery was below the standard of care. Id. at 

234. He opined further that it was impossible to perform the procedure as 

Defendant Zepp maintained that he did, execute the procedure properly, and 

still place the catheter seven inches into the artery. Id. at 225-26. Dr. Pepple 

was asked,“[i]f the standard of care has been properly observed, that all the 
J-A11014-19

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steps have not only been taken, but they were taken correctly and things were 

seen and evaluated correctly, is it possible that this artery would have been 

cannulated to that degree?” Id. at 238. He responded in the negative. Id. 

Dr. Pepple also rejected the suggestion that the location of Mrs. 

Lageman’s vein above the artery excused or explained the error. He testified 

that with the proper use of ultrasound, Defendant Zepp would have been 

aware of that fact. Id. at 239. Indeed, Dr. Pepple pointed to photographs in 

the medical record that showed the vein above the artery. Id. Thus, Plaintiff 

produced testimony that cannulation of the artery did not usually occur in the 

absence of negligence when the procedure was performed with manometry, 

as maintained by Defendant Zepp. Such testimony was sufficient to meet the 

first element of res ipsa loquitur: that arterial cannulation as occurred herein 

does not ordinarily happen in the absence of negligence.4 

____________________________________________

4 Despite the foregoing expert testimony, the Dissent contends that Plaintiff 

did not establish that arterial cannulation as occurred herein does not 

ordinarily happen in the absence of negligence. It maintains that Dr. Pepple’s 

testimony was not an unequivocal statement to that effect, but merely his 

opinion that Dr. Zepp was negligent in inserting the central line. See

Dissenting Opinion, at 25-26. In our view, Dr. Pepple’s testimony that it is 

impossible to place a catheter seven inches into the artery if one properly 

executes the central line procedure as described by Dr. Zepp, is the 

equivalent of testimony that what occurred here does not ordinarily happen in 

the absence of negligence. 

Our distinguished colleague faults us for rejecting contrary testimony from Dr. 

Zepp and his expert, Dr. Hudson, in concluding that Plaintiff’s proof met the 

first element of res ipsa. However, at this juncture of the analysis, we look at 

the Plaintiff’s proof to determine whether she established the first element. 
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As to the second element of res ipsa, eliminating other persons or causes 

as responsible for the harm, Defendant Zepp stated that he personally placed 

the central line. He added that “[t]he confirmatory steps that I took in placing 

the central line are the same confirmatory steps that I take when I place every 

central line.” Id. at 194-95. Defendant Zepp also ruled out the conduct of 

others as responsible causes of the event. He testified that Mrs. Lageman did 

not move, no one bumped the table, the equipment did not malfunction, the 

ultrasound was working properly, and the kit containing the catheter, dilator, 

and wire was not defective. He also downplayed the significance of Mrs. 

Lageman’s anatomy, explaining that the location of the jugular vein over the 

carotid artery was common in persons over age sixty, and that he had 

considerable experience placing central lines in patients belonging to that age 

group. Nevertheless, neither Defendant Zepp nor his expert, Dr. Hudson,

offered any explanation as to how, given this scenario, the large bore catheter 

ended up in Mrs. Lageman’s carotid artery instead of her jugular vein. 

Plaintiff also offered Dr. Pepple’s testimony regarding the likely 

connection between Defendant Zepp’s arterial cannulation and Mrs. 

Lageman’s stroke. The expert noted that Mrs. Lageman did not have atrial 

fibrillation or any other pre-existing conditions that predisposed her to stroke, 

____________________________________________

Furthermore, the fact that Dr. Pepple’s testimony was controverted does not 

mean that the inference was negated or that the instruction was improper. 

See infra at 23 (discussing effect of contrary evidence on the propriety of 

giving a res ipsa instruction). 
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and the MRI performed after the surgery did not disclose any alternative cause 

of her stroke. Furthermore, Mrs. Lageman immediately sustained a stroke of 

the middle cerebral artery, directly upstream from the site of the arterial 

cannulation. Id. at 235. According to the expert, the neurologist had 

eliminated other embolic causes of the stroke, including embolic phenomena 

from the heart. Id. at 237. It was Dr. Pepple’s opinion, to a reasonable 

degree of medical certainty, that the strokes were caused by the catheter 

being inserted “eighteen centimeters into the arterial area.” Id. Finally, the 

third element of res ipsa, that the indicated negligence was within the scope 

of Defendant Zepp’s duty to the patient, was not disputed. 

Having sustained her burden, Plaintiff contends that the court was 

required to give a res ipsa instruction. See Quinby, supra at 1072 (“[W]hen 

common knowledge or medical evidence can be established that the event 

would not ordinarily occur without negligence, there is no basis for refusing to 

draw an inference of negligence in accord with res ipsa loquitur.”). She alleges 

further that the evidence to the contrary offered by Defendant Zepp did not 

dissolve the inference. See Sedlitsky v. Pareso, 582 A.2d 1314, 1316 

(Pa.Super. 1990) (providing that where the plaintiff sustains his or her burden, 

the court must give the instruction on res ipsa loquitur, even if the defendant 

has produced a quantity of contrary evidence). 

Defendant Zepp contends, as the trial court concluded, that Plaintiff 

failed to satisfy the first element of the Restatement for application of res ipsa. 
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He argues that Dr. Pepple conceded that the injuries that occurred herein 

could happen in the absence of negligence when he agreed with the 

proposition that even if a physician follows all of the professional practice 

guidelines, a favorable outcome is not guaranteed. Appellee’s brief at 11

(citing N.T. Jury Trial, 1/2-8/18, at 283). The defense also points to Dr. 

Pepple’s testimony that Mrs. Lageman’s anatomy made the central line 

placement more difficult as evidence explaining the outcome in the absence 

of negligence. 

We find no merit in either argument. Dr. Pepple did not concede that 

this injury occurs in the absence of negligence. Rather, the expert was asked 

whether the American Society of Anesthesiologists’ practice guidelines state 

that they are not standards, and that following them does not guarantee any 

outcome. N.T. Jury Trial, 1/2-8/18, at 282-83. He answered in the 

affirmative, merely agreeing that the guidelines do state that. Id. This is 

hardly a concession by Plaintiff’s expert that arterial cannulation occurs in the 

absence of negligence. Furthermore, we note that even Defendant Zepp 

dismissed the notion that the orientation of Mrs. Lageman’s vein over the

carotid artery was unusual or that it complicated the placement of the central 

line. Defendant Zepp testified that, “over fifty percent of patients over the 

age of sixty have the same orientation as Mrs. Lageman,” and that he was 

quite familiar with it. Id. at 313. Dr. Pepple maintained that this anatomical 

presentation “just requires vigilance.” Id. at 231. 
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Defendant Zepp contends that Plaintiff also failed to satisfy the second 

element for the application of res ipsa loquitur. He maintains that the harm 

herein was the stroke, and that “placing a central venous line into an artery 

in and of itself is not an injury.” Appellee’s brief at 13. He argues that Ms. 

Lageman did not sufficiently eliminate other causes of her stroke or offer 

competent evidence from a neurologist that her stroke was caused by the 

central line placement. Id. According to the defense, Dr. Pepple’s testimony 

interpreting the neurology notes in the record was “weak” and failed to rule 

out other possible causes of stroke. Id. at 15. 

Res ipsa loquitur obviates the need for direct evidence that defendant’s 

conduct was the proximate cause of the plaintiff’s injury by allowing a plaintiff 

to eliminate other responsible causes of the event. See Fessenden, supra

at 1231; see also Quinby, supra at 1072-73. The critical inquiry as to the 

second element of res ipsa is whether a particular defendant is the responsible 

cause of the event. Defendant Zepp admitted that he alone was responsible 

for placing the large bore catheter in Mrs. Lageman’s carotid artery rather 

than her jugular vein. 

Dr. Pepple explained the connection between arterial cannulation and 

stroke as follows. When a catheter is mistakenly placed in an artery, clots 

form on the catheter itself, break off, and become emboli. N.T. Jury Trial, 

1/2-8/18, at 223. He further explained that emboli in the carotid artery 

particularly, which feeds the brain, can result in a stroke and hemiplegia. Id. 
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Based upon his education, knowledge, experience, and review of the 

neurology records, Dr. Pepple also opined that causes other than the arterial 

cannulation were effectively ruled out as the cause of Mrs. Lageman’s stroke.

5

 

We see no indication that Defendant Zepp challenged Dr. Pepple’s competency 

to render such an opinion in the court below. Furthermore, he was not 

required to be a neurologist to offer causation testimony. See 40 P.S. § 

1303.512.

Finally, Defendant Zepp distinguishes the facts herein from those in 

Quinby and Jones, on the basis that neither involved complex factual 

disputes as to the cause of the injury. Id. at 15. He analogizes the situation 

herein to that in Toogood v. Rogal, 824 A.2d 1140 (Pa. 2003) (plurality), 

where the Supreme Court found res ipsa inapplicable to a paravertebral nerve 

block injection that allegedly punctured the plaintiff’s lung. He also directs 

our attention to Starr v. Allegheny Gen. Hosp., 451 A.2d 499 (Pa.Super 

1982), where this Court affirmed the trial court’s refusal to permit the plaintiff 

to use res ipsa to establish a prima facie medical malpractice case for 

neurological problems allegedly caused by the negligent repair of a skull 

fracture. 

____________________________________________

5 Dr. Hudson and Defendant Zepp both conceded that arterial cannulation 

increased the risk of stroke. Moreover, the defense did not offer any expert 

testimony positing an alternative theory for Mrs. Lageman’s stroke. 
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The holding in Toogood is readily distinguishable. Conspicuously 

absent therein was expert medical testimony explaining the complicated 

medical procedure and opining that the injury did not ordinarily occur in the 

absence of negligence. In contrast, Plaintiff herein offered the requisite expert 

medical testimony linking the negligent arterial cannulation to stroke.6 

Starr involved claims of negligent post-operative treatment following 

surgery to repair a depressed skull fracture, which the plaintiff claimed 

resulted in slurred speech, blurred vision, and neurological injuries. This Court 

concluded, after a thorough review of the record, that there was insufficient 

evidence eliminating “other responsible causes” besides the alleged 

negligence of the appellees, and that the injuries were not the type that would 

not have ordinarily occurred but for the negligence of the appellees. In the 

instant case, Dr. Pepple testified unequivocally herein that, to a reasonable 

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

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

He also rendered the opinions that arterial cannulation “exponentially” 

increases the risk of stroke, and further, that there were no other causes for 

the stroke identified by the neurologist. N.T. Jury Trial, 1/2-8/18, at 232. 

Thus, Starr is inapposite. 

____________________________________________

6 Toogood was a plurality opinion, and the Quinby Court expressly declined 

to be bound by its reasoning. 
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Notably, in denying the requested res ipsa charge, the trial court did not

cite any perceived deficiency in the connection between arterial cannulation

and stroke. When Plaintiff renewed her request for the charge, the trial court

maintained that it was not “obvious” that the mistake at issue could not occur

in the absence of negligence.7 N.T. Jury Trial, 1/2-8/18, at 562. In its

____________________________________________

7

 The proposed point for charge on res ipsa loquitur consisted of the following:

You, as the jury, may infer negligence from the 

circumstances surrounding the injury. The Plaintiff, Mrs. 

Lageman, may satisfy her burden of proof by producing evidence 

of the Defendant’s negligence by proving that she has been 

injured by a cause of a sort that normally would not have occurred 

in the absence of negligence of the Defendant. The requirements 

of allowing you to infer negligence from the circumstantial 

evidence as well as from the direct testimony of the expert witness 

for the Plaintiff are these:

1. That the event is of a kind which ordinarily does not occur in 

the absence of negligence.

2. Other responsible causes including the conduct of the Plaintiff 

and third-party are sufficiently eliminated by the evidence.

3. The indicated negligence is within the Defendant’s duty to the

 plaintiff.

In addition to relying upon the Plaintiff’s expert testimony, 

if you chose to do so, you may also draw an inference of 

negligence from the circumstances as I have set them forth above. 

That is that the event usually does not occur in the absence of 

negligence that the conduct of the Plaintiff and other third persons 

are sufficiently eliminated by the evidence and the negligence is 

within the scope of the Defendant’s duty to the Plaintiff. It is clear 

from the evidence that the third requirement is not disputed as 

Dr. Zepp had a duty to the Plaintiff.
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subsequent Rule 1925(a) opinion, the court stated, “we stand by our original

ruling that the particular facts of this case would not present the type of event

that is so obvious that a mistake can occur but for negligence happening.” 

Trial Court Opinion, 8/2/18, at 18 (citing N.T., 1/8/18, at 562) (emphasis

added). In other words, the trial court did not see this case as a true res ipsa

case. It described the evidence as “inconclusive as to whether the use of

ultrasound does or does not totally eliminate the risk that a doctor would still

puncture or cannulate the artery rather than a vein.” Id. at 18. It pointed to

the fact that Mrs. Lageman’s anatomy made the procedure more difficult, and

concluded that “the evidence did not establish that more likely than not that

Plaintiff’s injuries were caused by Defendant Zepp’s negligence.” Id. at 19. 

Since “the experts shared different views,” the trial court found “the

possibilities were evenly divided between negligence and its absence.” Id. 

Hence, the court concluded that “Plaintiff was not entitled to a permissible

conclusion that arterial cannulation does not ordinarily happen unless

someone is negligent.” Id. at 19. 

We disagree. Even the trial court conceded that the expert testimony

of Dr. Pepple “essentially stated that cannulation of the artery cannot occur

unless someone is negligent.” Trial Court Opinion, 8/2/18, at 31 (quoting N.T.

____________________________________________

Quimby v. Plumsteadville Family Practice Inc., 589 Pa. 183, 

907 A.2d 1061 (2006). Restatement (Second) of Torts, § 328D.

Plaintiff’s Supplemental Requested Point for Charge, 1/8/18, at 2. 
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Jury Trial, 1/2-8/18, at 225-26). As the court noted, Plaintiff’s counsel elicited

that opinion in several ways:

Plaintiff’s Counsel: Let me put it this way: If the standard of care

has been properly observed, that all the steps have not only

been taken, but they were taken correctly and things were

seen and evaluated correctly, is it possible that this artery

would have been cannulated to that degree?

Dr. Pepple: No. 

N.T. Jury Trial, 1/2-8/18, at 238. One moment later, Dr. Pepple confirmed

that if a physician’s conduct is within the standard of care, cannulation of the

artery “should not occur.” Id. at 239. Thus, Plaintiff offered unequivocal

expert testimony that, in the absence of negligence, arterial cannulation

ordinarily does not occur. 

In our view, expert testimony rendered to a reasonable degree of 

medical certainty that arterial cannulation does not ordinarily occur under the 

operative conditions described by Defendant Zepp in the absence of 

negligence is more than sufficient to “permit the conclusion that it is more 

likely than not that [plaintiff’s] injuries were caused by the defendant’s 

negligence.” See Restatement (Second) of Torts § 328D cmt. e (1964). Dr. 

Pepple did not equivocate. In concluding that Plaintiff failed to offer evidence

that it was more probable than not that negligence caused the event, and that

she was “not entitled to a permissible conclusion that arterial cannulation does

not ordinarily happen unless someone is negligent[,]” the court improperly
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weighed the evidence offered by the defense that Defendant Zepp’s conduct

met the standard of care and that ultrasound is not infallible. Id. at 19. 

As the Restatement explains, “[a] res ipsa charge cannot be dependent 

on the weight a judge might give to the testimony offered in support of an 

inference of negligence.” Restatement (Second) of Torts § 328D(2) (1964). 

See also Sedlitsky, supra at 1316 (“Where the plaintiff sustains his or her 

burden, the court must give an instruction on res ipsa loquitur, even if the 

defendant has produced a quantity of contrary evidence.”). Rather, “it is the 

jury's function to determine whether the inference is to be drawn in any case 

where different conclusions might reasonably be reached.” Id. at § 328D(3). 

“If reasonable persons may reach different conclusion[s] regarding the 

negligence of the defendant, then it is for the jury to determine if the inference 

of negligence should be drawn. MacNutt v. Temple University Hospital, 

932 A.2d 980, 987 (Pa.Super. 2007).

Furthermore, where, as here, “the defendant testifies that he has 

exercised all reasonable care,” the Restatement commentators recognize that 

“the conclusion may still be drawn, on the basis of ordinary human experience, 

that he has not.” Restatement (Second) of Torts § 328 D, cmt. n. (1964) 

(acknowledging that although the defense offers evidence that there was no 

negligence in inspecting elevator, the fact remains that the elevator fell). 
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The defense expert, Dr. Hudson, did not render an opinion that arterial 

cannulation could have occurred herein without any negligence.8 Thus, he did 

not directly rebut Dr. Pepple’s expert testimony to that effect. Instead, Dr. 

Hudson opined, based upon Defendant Zepp’s account, that the procedure 

was performed in an appropriate fashion and sequence. His opinion that the 

“use of ultrasound does not eliminate the risk of arterial cannulation,” N.T. 

Jury Trial, 1/2-8/18, at 504, sidestepped the real question: whether the 

proper use of ultrasound and manometry, the gold standard for confirming 

placement of the wire in the vein, before dilating the vessel and inserting the 

large bore catheter, virtually eliminates the risk of arterial cannulation. The 

defense offered no explanation why ultrasound and manometry, properly 

interpreted, did not disclose to Defendant Zepp that the small catheter was in 

the artery rather than the vein before he threaded the wire, dilated the vessel, 

and inserted the large bore catheter seven inches into the artery. 

We find that Plaintiff offered evidence satisfying all three elements for

the application of the doctrine of res ipsa loquitur. At that juncture, the court

was charged with determining whether reasonable minds could differ. 

Critically, Defendant Zepp did not offer any non-negligent explanation for the

____________________________________________

8 Dr. Hudson was precluded from offering any opinion that arterial 

cannulations occur under similar circumstances in the absence of negligence 

because such an opinion was outside the scope of his expert report. However, 

Defendant Zepp offered lay opinion testimony, without objection, “that even 

in the absence of negligence, we can still have these arterial cannulations.” 

N.T. Jury Trial, 1/2-8/18, at 314. 
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arterial cannulation, nor evidence that some other cause was at least equally

likely the cause of Mrs. Lageman’s injury that would dissolve the inference.

Cf. MacNutt, supra (holding no inference permitted as it was disputed “with

equal fairness” whether plaintiff’s injury was a negligent Betadine burn or a 

non-negligent herpes zoster outbreak). 

Nor is reliance upon res ipsa foreclosed because Plaintiff’s medical 

expert also offered evidence of specific negligence. In Hollywood Shop, Inc. 

v. Pa. Gas & Water Co., 411 A.2d 509, 512 (Pa.Super. 1979), we were 

persuaded by the Third Circuit’s reasoning in Weigand v. Pennsylvania

Railroad Company, 267 F.2d 281 (3rd Cir. 1959) (applying Pennsylvania

law), that the trial judge erred in refusing to give a res ipsa loquitur instruction

on such facts. In Weigand, the plaintiff was walking between two railroad

tracks when the ground gave way and he fell into a hole five feet deep. In

addition to proceeding on a res ipsa theory, the plaintiff offered an engineer

who testified regarding the drainage conditions and supplied an explanation

for the accident. The court recognized that this was a res ipsa case, “but one

capable of some specific proof regarding the railroad’s negligence.” Id. at

284. It found it “illogical” and “unfair” to force the plaintiff to abandon one of

his theories, the same rationale we subsequently adopted in Hollywood 

Shop, in holding that the plaintiff was entitled to a res ipsa charge.

In D'Ardenne v. Strawbridge & Clothier, Inc., 712 A.2d 318 

(Pa.Super. 1998), we noted that there are cases where the evidence “‘falls 
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within the grey zone,’ a factual realm in which a plaintiff presents ‘as specific 

a case of negligence as possible, yet is unable to demonstrate the exact cause 

of the accident.’” Id. at 324 (internal citations omitted, emphasis in original). 

We reasoned, “where the plaintiff’s specific evidence of negligence is directly 

disputed by the defendant, ‘it may be especially important that the plaintiff 

get a res ipsa loquitur charge if he is otherwise entitled to it.’” Id. (citing 33 

A.L.R.2d 791, 793 (“An unsuccessful attempt to prove specific negligence on 

the defendant’s part, or the introduction of evidence of specific negligence not 

clearly establishing the precise cause of injury, will not deprive the plaintiff of 

the benefits otherwise available under the [res ipsa] doctrine.”)). 

Recently, in Quinby, our Supreme Court implicitly sanctioned the 

plaintiff’s introduction of evidence of specific negligence and concomitant 

reliance on the inference of negligence under res ipsa. The decedent, a 

quadriplegic, was placed on an examination table to permit a physician to 

remove a facial lesion. It was undisputed that, after the surgery was 

completed, the decedent, who was left unrestrained and unattended on the 

examination table, fell to the floor. According to decedent, defendants left 

him on his right side; according to defendants, decedent was left on his back 

in the center of the table. 

The plaintiff offered expert medical testimony, i.e., direct evidence that 

defendants had not complied with the standard of care, which required that 

decedent be safely secured on the examination table with side rails or straps, 
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or that someone stay with him at all times. The expert also opined that the 

defendants failed to provide a safe environment for the decedent while he was 

in the office. In addition to the foregoing direct evidence of negligence, the 

physician stated that, “absent extrinsic forces not present” therein, he could 

not envision how a quadriplegic could fall from such a table “without there 

being a breach of the requisite standard of care.” Quinby, supra at 1067.

The trial court concluded that the expert’s testimony established a prima 

facie case of negligence for submission to the jury. However, it refused the 

plaintiff’s request to charge the jury on res ipsa loquitur. Our Supreme Court 

held this was error. It reasoned that defendants had a duty to place decedent 

on the table in a manner that would insure that he did not fall, and found that 

there were no facts indicating that the decedent’s fall resulted from anything 

other than defendants’ negligence. The Court concluded that the evidence 

satisfied the first element of §328D because, “[s]imply put, in the absence of 

negligence, a quadriplegic patient such as Decedent could not fall off an 

examination table.” Id. at 202. Hence, although there was sufficient direct 

evidence of negligence from plaintiff’s expert to make out a prima facie case,

our Supreme Court held that the trial court erred in also refusing to charge on 

res ipsa where all three elements had been met.9 

____________________________________________

9 The Dissent suggests that our decision in MacNutt v. Temple University 

Hospital, Inc., 932 A.2d 980 (Pa.Super. 2007) (en banc), stands for the 

proposition that where there is adequate evidence of negligence to support a 
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Herein, as in Quinby, Plaintiff offered Dr. Pepple’s expert testimony that 

Dr. Zepp’s conduct deviated from the standard of care in certain particulars, 

all of which were factually disputed by Dr. Zepp. The expert also opined that 

what occurred here, i.e., insertion of the catheter seven inches into the artery 

instead of the vein, is not something that occurs in the absence of 

negligence.10 Defendant Zepp maintained that incorrectly placing the catheter 

into the artery is not the same as being negligent, although he offered no 

explanation as to how it occurred. Since Plaintiff established all three 

elements of res ipsa loquitur, we find that the trial court abused its discretion 

in refusing to instruct the jury on res ipsa, and a new trial is warranted. 

Although the foregoing issue is dispositive of this appeal, we address 

another issue that may recur on retrial: the propriety of permitting Defendant 

____________________________________________

cause of evidence for negligence, a plaintiff is precluded from proceeding on 

a theory of res ipsa. While that was indeed the trial court’s rationale in 

refusing to instruct the jury on res ipsa, we affirmed on a different basis: that 

the plaintiff failed to satisfy the three elements for the application of res ipsa

and that “it was not in reality a res ipsa loquitur case.” Id. at 991-92. 

Notably, in Quinby v. Plumsteadville Family Practice, Inc., 907 A.2d 1061 

(Pa. 2006), despite the fact that direct evidence of negligence was introduced, 

our Supreme Court held that the trial court erred in refusing to charge the 

jury pursuant to res ipsa where all three elements were established. Our 

distinguished colleague’s fear that the charge will be given in every 

malpractice case if we allow a plaintiff to seek a res ipsa instruction even when 

he has introduced direct evidence of negligence fails to appreciate how difficult 

it is to establish all three elements of the doctrine. 

10

 Dr. Pepple emphasized that this was not merely a posterior wall puncture 

of the jugular vein and inadvertent entry into the artery. Dr. Zepp inserted 

the catheter seven inches into the artery while supposedly using manometry, 

the gold standard for ensuring that the catheter is properly in the vein.
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Zepp to conduct either a live or videotaped demonstration of proper central 

line placement for the jury. 

The defense proposed to play for the jury a videotaped demonstration 

filmed the night before of Defendant Zepp performing a central line placement 

on a mannequin. The avowed purpose in demonstrating the procedure was 

to educate the jury. Plaintiff objected that the video had not been timely 

identified as a trial exhibit, it did not accurately depict the procedure 

performed on Mrs. Lageman, it was misleading and prejudicial, and, it created 

a “halo effect” around the defendant physician that was more prejudicial than 

probative. N.T. Jury Trial, 1/2-8/18, at 115. The trial court, upon being 

apprised that the video contained commentary, excluded the video on two 

grounds: 1) it had not been timely identified, and 2) the commentary was 

hearsay. Id. at 118. 

Undaunted, the defense proposed that Defendant Zepp be permitted to 

conduct a live demonstration of the procedure on a mannequin in the 

courtroom. Plaintiff renewed her earlier objections. The trial court overruled 

the objections, finding the demonstration relevant to help the jury understand 

the procedure. Later, in support of its ruling at trial, the trial court observed 

that it was “clear to the jury that this demonstration was not illustrative of the 

circumstances in Plaintiff’s case.” Trial Court Opinion, 8/2/18, at 21. 

Furthermore, the court maintained that the demonstration clearly showed how 

the initial position of the needle was “plainly visible” with the use of 
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ultrasound, and suggested that this worked to Mrs. Lageman’s benefit, rather 

than her detriment. Id. at 22. 

The law is well settled that the admission of evidence rests within the 

discretion of the trial court and will not be overturned absent an abuse of 

discretion or misapplication of the law. Cimino v. Valley Family Medicine, 

912 A.2d 851, 853 (Pa.Super. 2006). Moreover, in order for an evidentiary 

ruling to constitute reversible error, it must have been harmful or prejudicial 

to the complaining party. Phillips v. Lock, 86 A.3d 906, 920 (Pa.Super. 

2014). 

The trial court permitted Defendant Zepp to stand before the jury and 

demonstrate on a mannequin the performance of a central line placement. He 

narrated each step of the process, explained why he was doing it, and pointed 

out significant details germane to the case as he went along. The mannequin 

was obviously not the same as Mrs. Lageman. Accordingly, Defendant Zepp 

told the jury that he could not perform all steps of the procedure on the 

mannequin, and, at some point, he would stop and talk them through the 

remainder of the process. Id. at 297. 

Defendant Zepp demonstrated short-axis view ultrasound, and pointed 

out the artery and the vein. He highlighted marks on the ultrasound screen 

showing the depths. He showed how, as he approached the vein, the tissues 

started to move. When the needle entered the vein, and as he drew back on 

the syringe, he showed the jury that blue blood was visible, “venous blood for 
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the mannequin’s purposes.” Id. at 299. He pointed out to the jury the tip of 

the needle, which looked like a bright white dot in the middle of dark fluid. 

Id. at 299-300. He demonstrated the use of pressure manometry to confirm 

the placement of the small catheter before threading the wire in the vein. 

Defendant Zepp stopped before inserting the dilator, as it was not a good idea 

to place a dilator in a mannequin. After explaining how he would thread the 

wire, place the large catheter in the vein, and sew up the site, he told the 

jury: “It’s at that point I took one of these ports, and I hooked it up to the 

waveform measure, the transducer, and it transduced arterial rather than 

venous, and that gave me my confirmation.” Id. at 302. He then related to 

the jury that he contacted the general surgeon on call, and asked the nurse 

to summon the vascular surgeon, obviously referencing what occurred with

Mrs. Lageman specifically. Hence, what was presented to the jury as a generic 

demonstration of a central line procedure was apparently a reenactment of 

the procedure Defendant Zepp maintained that he actually performed on Mrs. 

Lageman. 

We agree that, in some circumstances, demonstrative evidence 

depicting a medical procedure may be helpful to the jury. Such evidence may 

take the form of a video depicting a similar procedure, or, as here, a video or 

live demonstration using a mannequin, assuming that it can adequately 

illustrate the procedure at issue. However, in either case, such 

demonstrations are usually undertaken by experts. We could find no 
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Pennsylvania cases discussing the propriety of permitting a defendant 

physician to conduct such a demonstration. Furthermore, in this case, 

Defendant Zepp was designated as a fact witness only. 

Our research revealed a New York appellate decision in Glusaskas v. 

Hutchinson, 544 N.Y.S. 2d 323 (1st Dept. 1989), in which the issue was the 

propriety of the admission of a videotape prepared for trial by the defendant 

physician of his performance of a similar surgery on another patient three 

weeks before the start of trial. As herein, the film was offered ostensibly to 

acquaint the jury with the surgical procedure at issue. Despite the plaintiff’s 

objection that the videotape was inflammatory and prejudicial, the court ruled 

that it was relevant for the purpose articulated, and not prejudicial. 

On appeal, the court took a different view of the evidence. It noted that 

the videotape suggested that because the defendant had successfully 

operated on another patient, he had used the same amount of care in 

performing the decedent’s surgery. Under New York law, “evidence of a 

person’s habitual conduct under similar circumstances in respect to using care 

is inadmissible for the purpose of raising an inference that he exercised the 

same amount of caution on the occasion when the injury in question was 

sustained.” Id. at 325. Furthermore, the court pointed out that the 

circumstances depicted on the video and those involving the decedent were 

not alike. Moreover, the videotaped procedure was undertaken more slowly 

and deliberately. The court described the impact of the video, enhanced by 
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the defendant’s commentary, as “devastating.” The court concluded that 

“[t]he implication is clear that [defendant doctor], the meticulous and 

experienced doctor that he is, having just demonstrated to the jury the 

enormous care which he generally takes in operating on his patients, was not 

apt to have been negligent in [decedent’s] case.” Id. at 326. 

The court ruled that the video was inadmissible character evidence 

suggesting that the defendant physician used the same care on the occasion 

in question. The New York court added that the use of an instructional film in 

a medical malpractice case might be justified in some circumstances, such as 

where an expert is demonstrating a particular procedure. However, the 

videotape was a “self-serving device prepared by a defendant” to disprove his 

negligence, and did not constitute relevant evidence of anything. Id. at 326-

27. Citing the significant potential for prejudice, the court held it was 

reversible error to admit it, and ordered a new trial. 

We find Defendant Zepp’s in-court demonstration of the placement of 

central line to be an abuse of discretion for many of the same reasons. The 

setting displayed Defendant Zepp’s care and skill in performing a difficult 

procedure. As in Glusaskas, the demonstration suggested that Defendant 

Zepp used the same amount of care in performing Mrs. Lageman’s central line 

placement as he used on the mannequin. It imbued Defendant Zepp with the 

aura of an expert expounding on the proper way to place a central line, and 

created the impression that he was incapable of negligence. It also allowed 
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him to simulate ultrasound and manometry results consistent with his version 

of the events. His commentary permitted him to segue seamlessly from what 

typically happens into what he alleged happened herein. 

We agree with Mrs. Lageman that the demonstration by Defendant Zepp 

was misleading, confusing, and that it was unfairly prejudicial to her. “‘Unfair 

prejudice’ supporting exclusion of relevant evidence means a tendency to 

suggest decision on an improper basis or divert the jury’s attention away from 

its duty of weighing the evidence impartially.” Parr v. Ford Motor Co., 109 

A.3d 682, 696 (Pa.Super. 2014) (quoting Commonwealth v. Wright, 961 

A.2d 119, 151 (Pa. 2008)). Since the defendant physician was portrayed as 

both an expert and one intimately familiar with the facts, his credibility was 

bolstered in the eyes of the jury. Plaintiff styled it a “halo effect,” and we find 

the term apt. The demonstration had some probative value but a considerably 

higher potential for prejudice. 

The trial court brushed off notions of prejudice by insisting that the jury 

was aware that “the demonstration was not illustrative of the circumstances 

in Plaintiff’s case.” See Trial Court Opinion, 8/2/18, at 21. We disagree. 

Defendant Zepp blurred that distinction when he began to discuss the specific 

circumstances at issue in the case. The demonstration implied that Defendant 

Zepp performed the procedure with the same care and skill on Mrs. Lageman 

as he displayed on the mannequin. Furthermore, it suggested that despite 

the exercise of due care, the catheter “transduced arterial rather than venous” 
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in the end, creating the impression that such events occur in the absence of 

negligence. 

Moreover, we do not agree with the trial court that Defendant Zepp’s 

emphasis on the fact that the tip of the needle was plainly visible with 

ultrasound alleviated any prejudice to Plaintiff. Defendant Zepp drew the 

jury’s attention to what he represented was the tip of the needle, and 

explained how it was specially machined to be visible under ultrasound. Such 

testimony specifically refuted Dr. Pepple’s testimony that Defendant Zepp was 

negligent in his use of short-axis view ultrasound as he could not see the tip 

of the needle; it undermined the notion that he could have placed the tip of 

the needle in the artery rather than the vein. 

In short, the fact that the demonstration was conducted by Defendant 

Zepp rather than an expert witness was improper, unfairly prejudicial, and 

cannot be deemed harmless. 

Judgment vacated. Case remanded for new trial. Jurisdiction 

relinquished.

Judge Olson joins the opinion.

Judge Stabile files a dissenting opinion.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/20/2020