J-A28039-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

HELEN SALIMAN OGIOBA, AS 

EXECUTRIX OF THE ESTATE OF 

LEWIS OGIOBA 

Appellant

v.

DR. CHIRAAG GUPTA AND 

NORTHAMPTON COUNTY HOSPITAL 

COMPANY, LLC

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 606 EDA 2017

Appeal from the Judgment Entered January 12, 2017

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

No(s): C-0048-CV-2013-07626

BEFORE: GANTMAN, P.J., PANELLA, J., and DUBOW, J.

MEMORANDUM BY DUBOW, J.: FILED APRIL 23, 2018

Appellant, Helen Saliman Ogioba, as Executrix of the Estate of Lewis 

Ogioba, appeals the January 12, 2017 Judgment entered in favor of

Appellees, Dr. Chiraag Gupta (“Dr. Gupta”) and Northampton County 

Hospital Company, LLC (“Northampton”). Upon careful review, we affirm.

The relevant factual and procedural history is as follows. On August 2, 

2011, after playing basketball, 15-year-old Lewis Ogioba (“Decedent”) 

presented at Easton Hospital Emergency Room1 at 8:00 P.M. with symptoms 

including shortness of breath, fatigue, weakness, and coughing up copious 

____________________________________________

1 At the time of the incident, Appellee Northampton owned, operated and 

controlled the facility known as Easton Hospital. 
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amounts of sputum. Dr. Gupta treated Decedent for asthma, administered 

Albuterol medication, and discharged Decedent after three hours of 

observation. In the early morning hours of August 3, 2011, Decedent 

suffered cardiopulmonary arrest and returned to the hospital in an 

ambulance, where medical staff pronounced him dead at 3:00 A.M. An 

autopsy later revealed that Decedent suffered from a heart condition called 

hypertrophic cardiomyopathy, a rare genetic disorder that causes the 

muscles inside the heart to thicken. 

On January 2, 2014, Appellant filed a Complaint bringing Wrongful 

Death and Survival Actions against Appellees. On August 21, 2014, 

Appellant filed a First Amended Complaint. On February 3, 2015, Appellant 

filed a Second Amended Complaint, and Appellant filed a Third Amended 

Complaint on April 20, 2015. On June 26, 2015, Dr. Gupta filed a Motion for 

Partial Judgment on the Pleadings (“Motion for Partial Judgment”), arguing 

that Appellant’s Third Amended Complaint added, inter alia, new causes of 

action sounding in negligence after the statute of limitations expired. On 

August 13, 2015, the trial court granted the Motion for Partial Judgment and 

struck multiple subparagraphs in Appellant’s Third Amended Complaint that 

stated new theories of negligence. 

Both Appellant and Appellees filed numerous motions in limine (“MIL”). 

Relevant to this appeal, the trial court granted the following motions: 1) MIL 

to Preclude Plaintiff’s Experts from Testifying as to Acts of Negligence Which 

Have Been Stricken from Third Amended Complaint; 2) MIL to Preclude 
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Plaintiff from Projecting Lost Future Earnings without a Deduction for 

Personal Maintenance Expenses; 3) MIL to Preclude Plaintiff’s Claim of 

Purported “Spoliation” of Evidence; and 4) MIL to Preclude Plaintiff from 

Presenting a Claim of Solatium Damages2 or for the Non-Pecuniary “Loss of 

Consortium” of [Decedent]. 

The jury trial commenced on January 19, 2016, and ended with a 

verdict in favor of Appellees on January 28, 2016. Appellant filed a timely 

Post-Trial Motion, which the trial court denied on September 2, 2016. 

Appellant entered Judgment on January 12, 2017.

Appellant timely appealed. Both Appellant and the trial court complied 

with Pa.R.A.P. 1925.

Appellant raises the following issues on appeal:

1. Whether [Appellant]’s Third Amended Complaint added more 

allegations of [Appellee] Dr. Chiraag Gupta’s medical 

negligence as new causes of action after the running of the 

applicable statute of limitations, when such new allegations 

were only an amplification of existing causes of action[,] 

which had been timely pleaded?

2. Whether [Appellant]’s medical experts’ testimony should have 

been limited to the “four corners” of the Third Amended 

Complaint (as limited by the August 13, 2015 Order) rather 

than the “four corners” of their respective expert reports, 

which addressed the precluded medical negligence issues that 

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2 “Solatium, or solace, describes a type of monetary damages awarded the 

decedent's survivors to recompense them for their feelings of anguish, 

bereavement, and grief caused by the fact of the decedent's death.” Sinn v. 

Burd, 404 A.2d 672, 675 n.3 (Pa. 1979).
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were only an amplification of existing causes of action which 

had been timely pleaded?

3. Whether witness testimony using certain words or medical 

terms or symptoms not specifically pleaded in the Third 

Amended Complaint (as limited by the August 13, 2015 

Order) should have been prohibited at trial, thereby 

precluding [Appellant]’s lay witnesses from testifying as to 

the Decedent’s symptoms on 8/2/11 and precluding 

[Appellant]’s counsel from cross-examining [Appellee] Dr. 

Chiraag Gupta as to relevant medical terms or symptoms to 

which he testified on direct examination?

4. Whether [Appellee] Northampton Hospital Company, LLC’s 

failure to preserve the hospital security video(s) from the 

night of August 2, 2011 warranted an adverse inference 

instruction and allowed testimony on direct examination of 

[Appellant]’s witnesses as to the presence of video cameras 

and the likely existence of surveillance video, especially 

pertaining to the apparent condition of the Decedent at the 

time of discharge from the hospital?

5. Whether [Appellant] could present expert testimony 

projecting [Decedent]’s lost future earnings without a 

deduction for personal maintenance expenses in light of the 

MCARE Act’s omission of any such requirement in 40 P.S. § 

1303.510 expressly addressing the reduction of such 

damages to present value?

6. Whether [Appellant] should have been allowed to present the 

testimony of [Decedent]’s parents regarding their emotional 

and psychological loss including companionship, society, and 

comfort as solatium damages, where the courts of the 

Commonwealth have held that such damages are includible 

as a loss of services recoverable in a suit for wrongful death 

under 42 [Pa.C.S.] § 8301?

Appellant’s Brief at 7-10.

In her first issue, Appellant avers that the trial court abused its 

discretion when it struck additional acts of negligence raised in her Third 

Amended Complaint. Appellant’s Brief at 23. Appellant acknowledges that 

her counsel filed the Third Amended Complaint after the two-year statute of 
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limitations expired but argues that the additional acts of negligence did not 

state new causes of action, but merely amplified the allegations in the 

original Complaint that were timely pleaded. Id. at 23. 

The decision of whether to allow a party to amend a pleading is within 

the sound discretion of the trial court, and we will not disturb that decision 

on appeal absent a clear abuse of discretion. Romah v. Hygienic 

Sanitation Co., 705 A.2d 841, 857 (Pa. Super. 1997). Pa.R.C.P. No. 1033 

provides that a party, by leave of court, may amend a pleading at any time. 

Pa.R.C.P. No. 1033(a). The right to amend a pleading is to be construed 

liberally. Del Turco v. Peoples Home Sav. Ass'n, 478 A.2d 456, 464 (Pa. 

Super. 1984). However, if amendment introduces a new cause of action, it 

is not permitted after the running of the statute of limitations. Id. 

Our Supreme Court has defined “cause of action” in negligence as 

“[t]he negligent act or acts which occasioned the injury.” Cox v. WilkesBarre Ry. Corp., 6 A.2d 538, 538 (Pa. 1939). This Court has held “[a] new 

cause of action does not exist if plaintiff’s amendment merely adds to or 

amplifies the original complaint[.]” Junk v. E. End Fire Dep’t, 396 A.2d 

1269, 1277 (Pa. Super. 1978) (citations omitted). However, a new cause of 

action does exist if the amendment “proposes a different theory or a 

different kind of negligence than the one previously raised or if the operative 

facts supporting the claim are changed.” Id.

Instantly, we recognize that a party must commence Wrongful Death 

and Survival actions within two years of the time the cause of action 
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accrued. See 42 Pa.C.S. § 5524(2); 42 Pa.C.S. § 5502(a); Moyer v. 

Rubright, 651 A.2d 1139, 1141 (Pa. Super. 1994). It is undisputed that 

Appellant’s counsel filed the Third Amended Complaint on April 20, 2015, 

almost four years after the claim arose and approximately twenty months 

after the statute of limitations expired. Accordingly, the only question is 

whether the Third Amended Complaint introduced new negligent acts as 

opposed to amplification of existing negligent acts. 

Appellant’s original Complaint contained multiple allegations of 

negligence against Dr. Gupta, including, in relevant part, that he: 1) “failed

to follow conventional medical protocol, monitoring and testing for signs of 

cardiac distress, specifically, by ordering [an] echocardiography[;]” 2) failed

to order a routine chest X-ray; and 3) failed to keep Decedent in the hospital 

overnight monitored by bedside equipment hooked up to his pulmonary and 

cardiovascular systems. See Complaint, 1/2/14, ¶¶47, 67. 

In the Third Amended Complaint, filed after the statute of limitations 

had expired, Appellant asserted additional averments of negligence. The

trial court permitted multiple amendments, but determined the following 

averments to be stricken with prejudice for stating new theories of 

negligence against Appellee and violating the statute of limitations: 

1) failing to take a complete and adequate history; 

2) failing to administer the proper diagnostic tests; 

3) failing to obtain a peak flow measurement;

4) failing to perform a cardiac work-up;
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5) failing to re-evaluate Decedent [] after he requested a wheelchair;

6) failing to detect ventricular bigeminy on the monitor strips; 

7) failing to recognize arrhythmia;

8) treating the Decedent [] with nebulizers despite the fact that he 

was symptomatic for congestive heart failure; and

9) failing to conduct additional diagnostic tests. 

See Third AmendedComplaint, 4/20/15 ¶¶43, 50.

Appellant cites Connor v. Allegheny General Hosp., 461 A.2d 600, 

(Pa. 1983), to support his argument that the averments stricken by the trial 

court merely amplified existing allegations of negligence. In Connor, the 

appellant underwent a barium enema after presenting at the hospital with 

abdominal distress. During and after the procedure, the barium solution 

leaked out of a perforation in the appellant’s colon into her abdominal cavity, 

necessitating multiple additional surgeries. Id. at 601. The appellant’s 

original complaint alleged that the hospital and treating physicians were 

negligent, inter alia: 1) in perforating the sigmoid colon during the 

performance of a barium enema procedure; 2) in perforating the sigmoid 

colon and causing extravasation of the barium into the abdominal cavity 

causing barium peritonitis; and 3) in otherwise failing to use due care 

and caution under the circumstances. Id. (emphasis added). The 

appellant amended her complaint, after the statute of limitations, by adding, 

inter alia, the following allegation:
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After it became apparent or should have become apparent . . . 

that barium with accompanying intestinal contents had 

extravasated into the abdominal cavity, the necessary 

laparotomy and cleansing of the abdominal cavity . . . was 

delayed improperly causing the barium and intestinal contents to 

remain within the abdominal cavity causing extensive peritonitis, 

formation of adhesions and a pericolic absess.

Id. 

This Court held that the statute of limitations barred the proposed 

amendment because it sought to add new allegations of negligent acts by 

proceeding on a different negligence theory. However, our Supreme Court

reversed and held that, in light of the original complaint’s broad and catchall allegation that the appellee was negligent, “in otherwise failing to use 

due care and caution under the circumstances[,]” the appellant’s 

proposed amendment did not change the cause of action but merely 

amplified it. Id. at 602. 

Instantly, Appellant argues that the language “failed to follow 

conventional medical protocol for the situation, by adequately monitoring 

and testing for signs of cardiac distress[,]” as contained in the original 

Complaint, is broad enough under Connor to allow Appellant to amend the 

Complaint after the running of the statute of limitations. However, as the 

trial court astutely opines, this argument is unpersuasive because Appellant 

fails to recognize that that the language “failed to follow conventional 

medical protocol” is limited by the subsequent language “specifically, by 

ordering [an] echocardiography.” See Order and Reasons, dated 8/13/15. 
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Accordingly, the language is not broad, but rather refers to a specific 

medical test, and Appellant’s argument fails. 

We are constrained to agree with the trial court that the averments 

stricken by the court are new allegations of negligence and not merely 

amplification of existing allegations; the new allegations address Dr. Gupta’s 

failure to engage in specific medical tests and diagnoses, which are separate 

and distinct from the original allegations of Dr. Gupta’s negligence. 

Accordingly, we find no abuse of discretion and Appellant’s first issue 

warrants no relief. 

Appellant’s second issue is whether the trial court abused its discretion 

when it limited the Appellant’s medical experts to the “four corners” of the 

Third Amended Complaint as limited by the August 13, 2015 Order. 

Appellant’s Brief at 24. Appellant argues that the trial court precluded 

expert witnesses Dr. Paynter and Dr. Charash from testifying within the “fair 

scope” of their expert reports pursuant to Pa.R.C.P. No. 4003.5(c). 

Appellant specifically avers that the trial court precluded Dr. Charash from 

testifying that Dr. Gupta failed to recognize the existence of pulmonary 

edema as a symptom of congestive heart failure. Id. at 40. 

This Court has held that when an allegation is unsupported by any 

citation to the record, such that this Court is prevented from assessing this 

issue and determining whether error exists, the allegation is waived for 

purposes of appeal. Commonwealth v. Harris, 979 A.2d 387, 393 (Pa. 

Super. 2009). Further, our Rules of Appellate Procedure make clear, “[i]f 
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reference is made to the pleadings, evidence, charge, opinion or order, or 

any other matter appearing in the record, the argument must set forth, in 

immediate connection therewith, or in a footnote thereto, a reference to the 

place in the record where the matter referred to appears.” Pa.R.A.P. 

2119(c). See also Hayward v. Hayward, 868 A.2d 554, 558 (Pa. Super. 

2005) (observing it is not the duty of this Court to “scour the record” and 

“act as the appellant’s counsel” and declining to do so). 

In arguing Appellant’s second issue, Appellant’s counsel fails to provide 

citation to the record as required by Pa.R.A.P. 2119(c). Accordingly, we are 

unable to determine whether error exists. This issue is, thus, waived. 

In her third issue, Appellant avers that the trial court abused its 

discretion when it ordered counsel to draw up a list of medical terminology 

and symptoms that could not be referenced in front of the jury due to the 

court’s 8/13/15 Order striking portions of the Third Amended Complaint. 

Appellant’s Brief at 41. Additionally, Appellant argues that the list of 

prohibited terms improperly precluded lay witnesses from testifying 

regarding their personal knowledge of Decedent’s symptoms, and unfairly 

limited the cross-examination of Dr. Gupta. Id. at 40-41.

During trial, after Appellee had moved several times for a mistrial in 

response to Appellant’s expert witnesses repeatedly testifying about 

precluded negligence theories over Appellee’s objections, the trial court 

“asked all counsel to prepare a bullet-point list of those areas precluded 

from the trial by the Pretrial Order” in order to “avoid confusion between 
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[Appellant]’s original and Third Amended Complaint and in an attempt to 

avoid further motions for a mistrial.” Trial Court Opinion, 2/16/16, at 19-20. 

In response to this request, Appellant’s counsel replied, “Okay, thanks your 

honor[,]” and failed to object to the creation of the list of prohibited words. 

N.T. Trial, 1/19/16, at 358. 

Appellant now argues that the trial court abused its discretion when it 

ordered counsel to provide a list of prohibited medical terminology and 

symptoms. If a party fails to raise a contemporaneous objection with the 

trial court, the claim is waived on appeal. Commonwealth v. Powell, 956 

A.2d 406, 423 (Pa. 2008). See also Pa.R.A.P. 302 (“Issues not raised in the 

lower court are waived and cannot be raised for the first time on appeal”). 

Because Appellant’s counsel failed to object to the creation of the list of 

prohibited words, counsel failed to preserve this issue for appellate review. 

Appellant also argues that the trial court improperly precluded lay 

witnesses from testifying regarding Decedent’s symptoms. Once again, 

Appellant’s counsel fails to provide citation to the record as required by 

Pa.R.A.P. 2119(c). We decline to act as Appellant’s counsel and scour the 

record. See Hayward, supra at 558. Accordingly, we are unable to 

determine whether error exists and find this issue to be waived. See

Harris, supra at 393.

Appellant next argues that the trial court unfairly limited the crossexamination of Dr. Gupta. Appellant asserts that Dr. Gupta testified on 

direct examination that Decedent’s heart had a regular rhythm, which 
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“opened the door” for Appellant’s counsel to cross-examine Dr. Gupta as to 

whether his treatment of Decedent for asthma with a nebulizer of albuterol 

could have caused or contributed to an arrhythmia, or abnormal heart rate. 

Appellant’s Brief at 44. We disagree.

It is well settled that “[t]he scope of cross-examination is a matter 

within the discretion of the trial court and will not be reversed absent an 

abuse of that discretion.” Commonwealth v. Hitcho, 123 A.3d 731, 769 

(Pa. 2015) (citation and quotation omitted). The Rules of Evidence provide: 

“[a] party witness in a civil case may be cross-examined by an adverse party 

on any matter relevant to any issue in the case, including credibility, unless 

the court, in the interests of justice, limits the cross-examination with 

respect to matters not testified to on direct examination.” Pa.R.E. 611(b). 

As stated above, the trial court struck the failure “to recognize 

arrhythmia” and “to detect ventricular bigeminy on the monitor strips”3from 

Plaintiff’s Third Amended Complaint. The trial court opined that Dr. Gupta’s 

testimony about his observations during a physical examination using a 

stethoscope did not “open the door” to cross-examine him regarding 

arrhythmia. The court noted that such cross-examination would entail 

dialogue regarding electrocardiogram (“EKG”) results as they appeared on 

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3 Ventricular bigeminy is a particular type of heart arrhythmia. Trial Court 

Opinion, 2/9/16, at 12. 
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the EKG monitor strips – a strickened subject. See Trial Court Opinion, 

2/9/16, at 13. We agree and, thus, find no abuse of discretion. 

In her fourth issue, Appellant avers that the trial court erred in 

denying the MIL in which Appellant’s counsel requested an adverse inference 

instruction due to Northampton’s failure to preserve the hospital security 

videos from the night in question. See Appellant’s Brief at 25. Appellant 

argues that because there was conflicting testimony about whether 

Decedent was in need of a wheelchair or assistance upon discharge from the 

hospital, the destroyed surveillance video of the hospital parking lot would 

have corroborated the testimony of Appellant’s witnesses. Id. at 49.

We review a trial court's decision to grant or deny a MIL for an abuse 

of discretion. Parr v. Ford Motor Co., 109 A.3d 682, 690 (Pa. Super. 

2014). 

Our Supreme Court has recognized that a common penalty for 

spoliation of evidence is a jury instruction allowing an inference that the 

missing evidence would have been unfavorable to the party that destroyed 

it. Schroeder v. Com., Dep't of Transp., 710 A.2d 23, 27 (Pa. 1998). To 

determine whether a party’s actions warrant such a jury instruction, a trial 

court must consider: “(1) the degree of fault of the party who altered or 

destroyed the evidence; (2) the degree of prejudice suffered by the 

opposing party[;] and (3) the availability of a lesser sanction that will 

protect the opposing party's rights and deter future similar conduct.” Id. 

(citation omitted). 
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To determine “the degree of fault,” a trial court must consider two 

components: 1) the extent of the offending party's duty or responsibility to 

preserve the relevant evidence; and 2) the presence or absence of bad faith. 

Parr, supra at 702. A party has a duty to preserve evidence where the 

party knows that litigation is pending or likely and it is foreseeable that 

discarding that evidence would be prejudicial to the opposing party. Id. 

In concluding that Northampton did not have a duty to preserve the 

video and did not act in bad faith, the trial court: (1) opined that even if 

Northampton knew that litigation was likely, “it was not foreseeable that 

destroying surveillance tapes from a security camera that captures footage 

of Easton Hospital’s parking lot ‘would be prejudicial to the [Appellant’]” 

especially because “the surveillance footage was apparently intended for 

security and not medical purposes[;]” and (2) found that the hospital taped 

over the video surveillance tapes during the regular course of business, 

rather than in bad faith. Trial Court Opinion, 9/2/16, at 24-25. Our review 

of the certified record indicates that it supports the trial court’s conclusions. 

Accordingly, we conclude the trial court did not abuse its discretion in 

denying Appellant’s MIL for an adverse jury instruction. 

Appellant’s fifth issue asserts that the trial court erred in granting Dr. 

Gupta’s MIL pertaining to the projection of lost future earnings. Appellant

argues that the trial court should have permitted Appellant’s expert to testify 

as to Decedent’s lost future earnings without including a deduction for 

personal maintenance expenses. Appellant’s Brief at 26. Appellant correctly 
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notes that the Medical Care Availability and Reduction of Error Act (“MCARE 

Act”), pursuant to 40 P.S. § 1303.510, requires damages for lost future 

earnings to be reduced to present value. Appellant argues, however, that 

because the statute does not specifically address a deduction for personal 

maintenance expenses, no such deduction is required when calculating lost 

future earnings. Id. at 50-51. Appellant’s claim lacks merit. 

Pennsylvania case law has long established that the damages 

recoverable in a survival action include “the decedent's pain and suffering, 

the loss of gross earning power from the date of injury until death, and the 

loss of his earning power—less personal maintenance expenses, from the 

time of death through his estimated working life span.” Kiser v. Schulte, 

648 A.2d 1, 4 (Pa. 1994). Our Supreme Court has defined “personal 

maintenance” as what a person “would have spent for those things which 

are essential to the individual's personal and physical subsistence.” 

McClinton v. White, 444 A.2d 85, 87 (Pa. 1982). 

In March 2002, the legislature enacted the MCARE Act to ensure, inter 

alia, that “a person who has sustained injury or death as a result of medical 

negligence by a health care provider [is] afforded a prompt determination 

and fair compensation.” 40 P.S. § 1303.102(4). Section 1303.510 of the 

MCARE Act provides that future damages for loss of earnings in a medical 

professional liability action shall be reduced to present value, as follows:

Future damages for loss of earnings or earning capacity in a 

medical professional liability action shall be reduced to present 

value based upon the return that the claimant can earn on a 
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reasonably secure fixed income investment. These damages 

shall be presented with competent evidence of the effect of 

productivity and inflation over time. The trier of fact shall 

determine the applicable discount rate based upon competent 

evidence.

40 P.S. § 1303.510. 

As Appellant states, this section is silent on whether personal 

maintenance expenses should be deducted. However, this Court has 

continued to uphold the deduction of personal maintenance expenses in the 

calculation of future lost earnings. See Davis v. Steigerwalt, 822 A.2d 22, 

28 (Pa. Super. 2003) (holding “the measure of damages awarded in a 

survival action includes the decedent's pain and suffering, the loss of gross 

earning power from the date of injury until death, and the loss of her 

earning power—less personal maintenance expenses, from the time of death 

through her estimated life span”); Carroll v. Avallone, 869 A.2d 522, 528–

29 (Pa. Super. 2005) (including personal maintenance deduction in 

calculation of damages in survival action), reversed on other grounds, 

939 A.2d 872 (Pa. 2007).

Because the MCARE Act does not prohibit a personal maintenance 

deduction in the calculation of future damages for loss of earnings, and case 

law decided subsequent to the Act’s passage has continued to include the 

deduction, Appellant’s claim that the trial court should have permitted his 

expert to testify without mention of the deduction of personal expenses is 
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meritless. Accordingly, we find no abuse of discretion in the trial court’s 

granting Dr. Gupta’s MIL pertaining to the projection of lost future earnings.

In Appellant’s sixth and final issue, Appellant avers that the trial court 

erred in granting Appellee’s MIL to Preclude Plaintiff from Presenting a Claim 

of Solatium Damages or for the Non-Pecuniary “Loss of Consortium” of 

Decedent Ogioba. Appellant’s Brief at 53. Appellant argues Decedent’s 

parents should have been allowed to testify as to their emotional and 

psychological loss as part of the value of lost “services” recoverable in a 

Wrongful Death Action. Id. at 53.

Again, Appellant’s counsel fails to provide citation to the record 

pursuant to Pa.R.A.P. 2119(c), and we decline to act as Appellant’s counsel 

and scour the record. See Hayward, supra at 558. Accordingly, we are 

unable to determine whether error exists and find this issue to be waived. 

See Harris, supra at 393.

Judgment affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/23/18