J-A16044-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37

KELLY A. VELESARIS & DEMETRIOS 

C. VELESARIS 

Appellants

v.

OLEG LEONTIEV, M.D., LEBANON 

IMAGING ASSOCIATES, P.C., THE 

GOOD SAMARITAN HOSPITAL OF 

LEBANON, PENNSYLVANIA D/B/A 

WELLSPAN GOOD SAMARITAN 

HOSPITAL, AND WELLSPAN HEALTH

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1602 MDA 2022

Appeal from the Order Entered October 12, 2022

In the Court of Common Pleas of Lebanon County Civil Division at No(s): 

2018-02094

BEFORE: PANELLA, P.J., BENDER, P.J.E., and McCAFFERY, J.

MEMORANDUM BY McCAFFERY, J.: FILED: AUGUST 15, 2023

In this medical malpractice action, Kelly A. Velesaris and her husband, 

Demetrios C. Velesaris (collectively, Appellants) take this appeal from the 

order entered in the Lebanon County Court of Common Pleas, granting 

summary judgment in favor of Oleg Leontiev, M.D., and Lebanon Imaging 

Associates, P.C.1 (collectively, Dr. Leontiev).2 Appellants aver the trial court 

____________________________________________

1 Appellants named Lebanon Imaging Associates, P.C. based on a claim of 

vicarious liability. See Appellants’ Complaint, 8/9/18, at ¶ 3.

2 Appellants voluntarily sought to enter final judgment in favor of Dr. Leontiev 

to pursue the present appeal. See Final Order, 10/12/22, at 1-2.
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erred in determining that two of their expert witnesses were not qualified and 

competent to render opinions on causation. Based on the following, we affirm.

The underlying facts and procedural history are as follows. Kelly had 

several “routine bilateral mammogram[s]” performed in 2007, 2008, and 

2013 at Tristan Radiology. See Appellants’ Complaint at ¶¶ 13-15. All three

studies “showed heterogeneously dense breast tissue with no evidence of 

malignancy.” Id. 

On October 25, 2014, she presented to Good Samaritan Hospital for an 

annual mammogram screening and Dr. Leontiev was the reviewing physician.

3

 

See Appellants’ Complaint at ¶ 16. 

The study was compared to the prior three previous studies 

performed at Tristan. The results of this study, as interpreted by 

[Dr. Leontiev], revealed “scattered fibroglandular densities” with 

“no dominant masses, suspicious microcalcifications or areas of 

architectural distortion observed to suggest malignancy. [There 

were n]o significant changes when compared to prior studies.” Dr. 

Leontiev assessed [Kelly] as Birads[4] Category 1-Negative.”

Id.

Kelly returned to Good Samaritan on October 27, 2015, for her annual 

mammogram screening, which was again interpreted by Dr. Leontiev. This 

____________________________________________

3 Dr. Leontiev is a board certified radiologist. See Dr. Leontiev’s Answer and 

New Matter, 6/24/19, at ¶ 2. Kelly testified she never met Dr. Leontiev. See

Dr. Leontiev’s Brief in Support of Supplemental Omnibus Motion in Limine, 

9/16/22, at Exhibit “B” (Oral Deposition of Kelly A. Velesaris, 9/9/19, at 27). 

4 “Birads” is the acronym for “Breast Imaging Reporting & Data System.”
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study was compared to the October 25, 2014, and the March 21, 2013, 

studies, and the results were substantially similar to the 2014 screening. See

Appellants’ Complaint at ¶ 17. 

Kelly next returned to Good Samaritan on November 14, 2016, for a 

mammogram screening. This time, Jennifer Kegel, M.D. interpreted the study 

and compared it with the five previous studies. She “noted ‘scattered 

fibroglandular densities. Focal asymmetry/architectural distortion, upper 

quadrant left breast.’ Dr. Kegel assessed [Kelly] as Birads Category 0-

Incomplete, and recommended [she] undergo further imaging and ultrasound 

in light of the findings.” Appellants’ Complaint at ¶ 18.

Kelly then went to the Milton S. Hershey Medical Center (Hershey) on 

November 17, 2016, for additional diagnostic testing. Appellants’ Complaint 

at ¶ 19. “Results of the tests confirmed that a ‘solid mass in the left breast 

[was] highly suggestive of malignancy.” Id. Kelly was then “assessed as a 

Birads Category 5-Highly Suggestive of Malignancy.” Id. A biopsy of Kelly’s 

left breast was taken, “confirming a diagnosis of invasive left breast 

carcinoma.” Id. at ¶ 20. “A breast [magnetic resonance imaging (MRI)]

performed on November 23, 2016, at [Hershey] confirmed the presence of 

multiple additional suspicious masses, thereby precluding any option of 

breast-conserving surgery.” Id. at ¶ 21. 

On January 2, 2017, Kelly “underwent a bilateral mastectomy and a left 

axillary sentinel lymph node biopsy” at Hershey. Appellants’ Complaint at ¶ 
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22. “The results of the lymph node biopsy revealed left multifocal invasive 

breast carcinoma with ductal and lobular features, and extensive high nuclear 

grade ductal carcinoma in-situ, as well as micrometastic carcinoma in sentinel 

lymph nodes.” Id. at ¶ 23. Kelly also underwent chemotherapy six weeks 

later. See Oral Deposition of Kelly A. Velesaris at 60. Additionally, she 

decided to undergo postmastectomy radiation. Id. at 90. Subsequently, she 

sought numerous breast reconstruction procedures.5 Post treatment, Kelly 

has not been diagnosed with any recurrence of her breast cancer. Id. at 94-

95.

On August 9, 2018, Appellants filed a complaint against Dr. Leontiev, 

and other entities,6 alleging that the doctor’s failure to timely detect and report 

radiologic mammographic evidence of cancer in Kelly’s left breast based on

____________________________________________

5 Kelly acknowledges she has had five breast revision surgeries. See

Appellants’ Pretrial Statement, 2/28/22, at 1; see also Appellants’ Brief at 6. 

Her treating radiation oncologist, Jennifer C. Rosenberg, M.D., stated that 

when a patient that has breast reconstruction, they can develop scar tissue 

after radiation. See Omnibus Motion in Limine of Defendants, Oleg Keontiev, 

M.D. and Lebanon Imaging Associates, P.C., Challenging Expert Evidence, 

9/8/22, at Exhibit “A” (Oral Deposition of Jennifer C. Rosenberg, M.D., 

2/21/20, at 32).

6 Appellants also named The Good Samaritan Hospital of Lebanon, 

Pennsylvania d/b/a WellSpan Good Samaritan Hospital (Good Samaritan), and 

WellSpan Health (WellSpan) as defendants. Good Samaritan and WellSpan 

were dismissed from the underlying litigation pursuant to the trial court’s 

October 5, 2022. Appellants do not challenge that portion of the trial court’s 

order on appeal.
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studies he reviewed on October 25, 2014, and October 27, 2015.7 Moreover, 

Appellants averred: 

27. As a consequence of the delayed diagnosis of left breast 

cancer, [Kelly] required more aggressive, invasive treatment

and lost any possibility of pursuing any breast-conserving, 

less radical options. The delayed diagnosis also diminished

[Kelly]’s chances of achieving a complete cure.

28. As consequence of the delayed diagnosis of left breast cancer, 

[Kelly] sustained permanent and irreversible loss of both 

breasts. 

Appellants’ Complaint at ¶¶ 27-28 (emphases added). 

The parties exchanged numerous pleadings and motions. The matter 

was scheduled for trial on October 10, 2022. In their pretrial statement, 

Appellants identified two experts — a radiologist expert, Reni S. Butler, M.D., 

and a psychiatrist expert, Howard L. Forman, M.D. — who would testify that 

the delayed diagnosis caused the progression of Kelly’s breast cancer, which 

necessitated the treatment chosen by Kelly. See Appellant’s Pretrial 

Statement at 6 (unpaginated).

Dr. Butler’s report provided, in relevant part:

It is my opinion, to a reasonable degree of medical certainty, 

that the standard of care was breached at the time of 

interpretation of the 10/25/2014 and 10/27/2015 mammograms, 

due to a failure to identify interval development of new or 

increasing suspicious findings; a failure to recommend further 

evaluation with diagnostic mammography and ultrasound; and a 

____________________________________________

7 Appellants originally filed their complaint in the Philadelphia Court of 

Common Pleas. The matter was subsequently transferred to the Lebanon 

County Court of Common Pleas pursuant to a stipulation by the parties.
J-A16044-23

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failure to perform biopsy for histologic diagnosis. The 

misinterpretation of the mammograms from 10/25/2014 and 

10/27/2015 fell outside the standards of acceptable professional 

practice and resulted in a delay of [Kelly]’s breast cancer 

diagnosis.

It is also my opinion, to a reasonable degree of medical 

certainty, that had a biopsy been performed after the 10/25/2014 

or 10/27/2015 mammograms, [Kelly’s] cancer would have been 

diagnosed earlier when she could have been treated less 

aggressively with breast conserving surgery. In this case as well 

as any other oncologic case, it is a well-accepted medical concept 

that the earlier the stage at which a malignancy is diagnosed, the 

better the prognosis for treatment and eventual outcome. The 

delay in diagnosis of [Kelly’s] invasive breast carcinoma due to 

the failure to identify suspicious mammographic findings on 

10/25/2014 or 10/27/2015 allowed her cancer to progress, led to 

more aggressive surgical treatment, and diminished her chances 

of [a] cure.

Dr. Leontiev’s Motion in Limine at Exhibit “B” (Dr. Butler’s Report re Kelly 

Velesaris, 5/18/18, at 3-4 (unpaginated)).

Additionally, Dr. Forman’s expert report stated, in part: 

[Kelly]’s decision-making throughout the treatment of her breast 

cancer was not influenced by any mental illness.

* * *

When [Kelly] was finally diagnosed, her physicians provided her a 

menu of treatment options. She chose from that menu. If the 

cancer had been diagnosed earlier, it is reasonable to conclude 

that menu would not have included as many of the disfiguring and 

systemic treatments [Kelly] received.

Dr. Leontiev’s Motion in Limine at Exhibit “C” (Dr. Forman Report re Kelly 

Velesaris, 6/7/21, at 8-9).

On September 8, 2022, Dr. Leontiev filed a motion in limine, asserting 

Appellants’ proposed experts, Dr. Butler and Dr. Forman, were “not qualified 
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to present opinions on causation in this matter where the specific care at issue 

is based in various disciplines of oncology.” Dr. Leontiev’s Motion in Limine at 

7 (capitalization and emphasis omitted). Dr. Leontiev alleged that Dr. Butler’s 

curriculum vitae did “not reflect any education, experience or training in 

oncology or the assessment and treatment of cancer.” Id. Moreover, Dr. 

Leontiev stated Dr. Butler “does not diagnose cancer, recommend treatment 

plans, manage treatment plans, coordinate oncological specialties or generally 

follow an oncology patient.” Id. Rather, the radiologist “interpret[s] studies 

and develop[s] impressions which recorded in reports then utilized by 

oncology providers.” Id. Moreover, he stated that while “radiology is a 

necessary and integral step in the diagnosing and sizing of cancer, it can only 

disclose, at most, the existence of a tumor and sometimes, the size and extent 

of the disease.” Id. Dr. Leontiev further asserted:

The issues of causation in this matter relate solely to whether 

[Kelly] required more aggressive oncology treatment resulting 

from the alleged failure to detect. However, the size of the tumor 

alone is insufficient, as explained by each of [Kelly]’s treating 

providers, to perform this analysis even though that is the extent 

of information that can be offered by a radiologist.

Id. at 7-8.

As for Dr. Forman, Dr. Leontiev alleged that “it is difficult to find two 

medical specialties more unrelated to one another than psychiatry and 

oncology and there simply does not appear to be any basis for Dr. Forman to 

render causation opinions.” Dr. Leontiev’s Motion in Limine at 8. Dr. Leontiev 
J-A16044-23

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concluded that “neither of these individuals are qualified to render causation 

opinions in this matter.”8 Id. at 9 (footnote omitted).

On October 5, 2022, the trial court entered an order, which addressed 

multiple motions, including Dr. Leontiev’s motion in limine regarding 

Appellants’ experts. The order stated, in pertinent part:

4. The Omnibus Motion in Limine of [Dr. Leontiev] Challenging 

Expert Evidence is GRANTED, in part, and DENIED, in part, as 

follows:

(a.) Dr. Reni Butler and Dr. Howard L. Forman are prohibited 

from expressing an expert opinion as to causation, i.e., 

whether [Kelly] would have had a more favorable prognosis 

for treatment and eventual outcome if the diagnosis of 

cancer had been made at the earlier date(s) suggested by 

the evidence adduced at trial.

(b.) Dr. Forman is prohibited from expressing an opinion as 

to whether any mental illness interfered with the decisionmaking process of [Kelly] regarding her cancer treatment.

Order, 10/5/22, at 3.

Upon receipt of the court’s order, Appellants’ counsel “notified the [trial 

c]ourt that they would not be able to make out a prima facie case of negligence 

____________________________________________

8 Dr. Leontiev also made the following comment: 

Dr. Leontiev is not suggesting that Dr. Forman is unqualified to 

render a causation opinion relating to any alleged emotion injuries 

or disorders resulting from the alleged delay to detect. However, 

this issue is separate and distinct from the issue of whether the 

alleged delay to detect require more aggressive treatment or 

actually resulted in harm to [Kelly]. 

Dr. Leontiev’s Motion in Limine at 9 n.1.
J-A16044-23

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due to [its] ruling on the Omnibus Motion in Limine.” Trial Ct. Op., 12/23/22, 

at 4. Consequently, the court entered a final order on October 12, 2022, 

which granted summary judgment in favor of Dr. Leontiev and directed the 

prothonotary to enter final judgment in this matter. See Final Order, 

10/12/22, at 1-2. Appellants filed a timely notice of appeal.9

Appellants present the following issues for review:

A. Whether [Appellants]’ expert, Dr. Reni Butler, is qualified and 

competent to render opinions regarding causation[?]

B. Whether [Appellants]’ expert, Dr. Howard Forman, is qualified 

and competent to render opinions regarding causation[?]

Appellants’ Brief at 5.

Because both of Appellants’ claims concern the court’s grant of summary 

judgment in favor of Dr. Leontiev, which stemmed from the court’s grant of 

Dr. Leontiev’s motion in limine on the basis that Appellants were precluded 

from offering expert opinions regarding medical causation and an increased 

risk of harm,10 we are guided by the following standards and principles.

In reviewing a challenge to the entry of summary judgment, we may

disturb the trial court’s order “only where it is established that the court

____________________________________________

9 Appellants complied with the trial court’s directive to file a Pa.R.A.P. 1925(b) 

concise statement of errors complained of on appeal. See Appellants’ Concise 

Statement of Errors Complained of on Appeal, 11/14/22, at 1-2. The trial 

court issued a Pa.R.A.P. 1925(a) on December 23, 2022.

10 See Final Order, 10/12/22, at 1.
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committed an error of law or abused its discretion. As with all questions of

law, our review is plenary.” Pass v. Palmiero Auto. of Butler, Inc., 229

A.3d 1, 5 (Pa. Super. 2020) (citation omitted).11 

Moreover, our standard of review of a ruling on a motion in limine is 

well-settled:

A motion in limine is used before trial to obtain a ruling on the 

admissibility of evidence. It gives the trial judge the opportunity 

to weigh potentially prejudicial and harmful evidence before the 

trial occurs, thus preventing the evidence from ever reaching the 

jury. A trial court's decision to grant or deny a motion in limine is 

subject to an evidentiary abuse of discretion standard of review.

Parr v. Ford Motor Co., 109 A.3d 682, 690 (Pa. Super. 2014) (en banc)

(citations & quotation marks omitted).

When we review a ruling on the admission or exclusion of 

evidence, including the testimony of an expert witness, our 

standard is well-established and very narrow. These matters are 

within the sound discretion of the trial court, and we may reverse 

____________________________________________

11 Furthermore, we note Pennsylvania Rule of Civil Procedure 1035.2 provides:

that where there is no genuine issue of material fact and the 

moving party is entitled to relief as a matter of law, summary 

judgment may be entered. Where the nonmoving party bears the 

burden of proof on an issue, he may not merely rely on his 

pleadings or answers in order to survive summary judgment. 

Failure of a non-moving party to adduce sufficient evidence on an 

issue essential to his case and on which he bears the burden of 

proof establishes the entitlement of the moving party to judgment 

as a matter of law. Lastly, we will review the record in the light 

most favorable to the nonmoving party, and all doubts as to the 

existence of a genuine issue of material fact must be resolved 

against the moving party.

Pass, 229 A.3d at 5 (citation omitted).
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only upon a showing of abuse of discretion or error of law. An 

abuse of discretion may not be found merely because an appellate 

court might have reached a different conclusion, but requires a 

result of manifest unreasonableness, or partiality, prejudice, bias, 

or ill-will, or such lack of support so as to be clearly erroneous. In 

addition, [t]o constitute reversible error, an evidentiary ruling 

must not only be erroneous, but also harmful or prejudicial to the 

complaining party.

Freed v. Geisinger Med. Ctr., 910 A.2d 68, 72 (Pa. Super. 2006) (citations

& quotation marks omitted).

Pursuant to Pennsylvania Rule of Evidence 702:

A witness who is qualified as an expert by knowledge, skill, 

experience, training, or education may testify in the form of an

opinion or otherwise if:

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

knowledge is beyond that possessed by the average layperson;

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

knowledge will help the trier of fact to understand the evidence or 

to determine a fact in issue; and

(c) the expert’s methodology is generally accepted in the relevant 

field.

Pa.R.E. 702(a)-(c).

The Medical Care Availability and Reduction of Error Act, 40 P.S. § 

1303.101 et seq. (MCARE), sets forth additional requirements for expert

testimony in medical professional liability actions. Specifically, MCARE

provides, in relevant part:

(a) GENERAL RULE. — No person shall be competent to offer an

expert medical opinion in a medical professional liability action

against a physician unless that person possesses sufficient

education, training, knowledge and experience to provide
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credible, competent testimony and fulfills the additional

qualifications set forth in this section as applicable.

(b) MEDICAL TESTIMONY.— An expert testifying on a medical

matter, including the standard of care, risks and alternatives,

causation and the nature and extent of the injury, must meet the

following qualifications:

(1) Possess an unrestricted physician’s license to practice

medicine in any state or the District of Columbia.

(2) Be engaged in or retired within the previous five years

from active clinical practice or teaching.

Provided, however, the court may waive the requirements of this

subsection for an expert on a matter other than the standard of

care if the court determines that the expert is otherwise

competent to testify about medical or scientific issues by virtue of

education, training or experience.

40 P.S. § 1303.512(a)-(b).

To prevail in any negligence action, the plaintiff must

establish the following elements: the defendant owed him or her

a duty, the defendant breached the duty, the plaintiff suffered

actual harm, and a causal relationship existed between the breach

of duty and the harm. When the alleged negligence is rooted in

professional malpractice, the determination of whether there was

a breach of duty comprises two steps: first, a determination of the

relevant standard of care, and second, a determination of whether

the defendant’s conduct met that standard. Furthermore, to

establish the causation element in a professional malpractice

action, the plaintiff must show that the defendant’s failure

to exercise the proper standard of care caused the

plaintiff’s injury. Expert testimony is generally required in

a medical malpractice action to establish several of elements: the

proper standard of care, the defendant’s failure to exercise that

standard of care, and the causal relationship between the

failure to exercise the standard of care and the plaintiff’s

injury.

Freed, 910 A.2d at 72-73 (citations omitted; emphases added). “[M]edical

opinion need only demonstrate, with a reasonable degree of medical certainty, 
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that a defendant’s conduct increased the risk that the harm sustained by 

plaintiff would occur.” Gradel v. Inouye, 421 A.2d 674, 679 (Pa. 1980).12

Lastly, we note:

In Hamil v. Bashline, our Supreme Court adopted the

relaxed “increased-risk-of-harm” standard for use in certain

medical malpractice claims. 392 A.2d 1280, 1288 (Pa. 1978). In 

adopting this principle, the Hamil Court reasoned:

In light of our interpretation of [subs]ection 323(a) [of

Restatement of Torts 2d,

13] it follows that where medical

causation is a factor in a case coming within that Section, it

____________________________________________

12 Furthermore, it merits mention:

[A]lthough it is preferable that the expert be in the same specialty 

as the defendant, that is not what the law requires in every case. 

Rather, “[t]he ‘same subspecialty’ ideal contained in [the MCARE 

Act] includes an express caveat, reflecting the Legislature’s 

decision to afford the trial court discretion to admit testimony from 

a doctor with expertise in another specialty that ‘has a similar 

standard of care for the specific care at issue.’”

Vicari v. Spiegel, 936 A.2d 503, 513-14 (Pa. Super. 2007) (citations &

footnote omitted; emphasis in original).

13 Subsection 323 provides, in part:

Negligent Performance of Undertaking to Render Services

One who undertakes, gratuitously or for consideration, to render 

services to another which he should recognize as necessary for 

the protection of the other's person or things, is subject to liability 

to the other for physical harm resulting from his failure to exercise 

reasonable care to perform his undertaking, if

(a) his failure to exercise such care increases the risk of such 

harm . . . .

Restatement (Second) of Torts § 323(a).
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is not necessary that the plaintiff introduce medical evidence

in addition to that already adduced to prove defendant’s

conduct increased the risk of harm — to establish that the

negligence asserted resulted in plaintiff’s injury. Rather,

once the jury is apprised of the likelihood that defendant’s

conduct resulted in plaintiff’s harm, [subsection 323(a)]

leaves to the jury, and not the medical expert, the task of

balancing probabilities.

Hamil, 392 A.2d at 1288. Subsequently, our high court 

explained:

An example of this type of case is a failure of a physician to 

timely diagnose breast cancer. Although timely detection of

breast cancer may well reduce the likelihood that the patient

will have a terminal result, even with timely detection and

optimal treatment, a certain percentage of patients

unfortunately will succumb to the disease. This statistical

factor, however, does not preclude a plaintiff from prevailing

in a lawsuit. Rather, once there is testimony that there was

a failure to detect the cancer in a timely fashion, and such

failure increased the risk that the woman would have either

a shortened life expectancy or suffered harm, then it is a

question for the jury whether they believe, by a

preponderance of the evidence, that the acts or omissions

of the physician were a substantial factor in bringing about

the harm. See Jones v. Montefiore Hosp., 431 A.2d 920

(Pa. 1981).

Mitzelfelt, 584 A.2d at 892; see Smith v. Grab, 705 A.2d 894,

899 (Pa. Super. 1997) (stating expert’s testimony demonstrating

increased risk of harm “furnishes a basis for the fact-finder to go

further and find that such increased risk of harm was in turn a

substantial factor in bringing about the resultant harm”) (quoting

Hamil, supra).

K.H. v. Kumar, 122 A.3d 1080, 1104 (Pa. Super. 2015) (footnotes omitted).

14

____________________________________________

14 We acknowledge that we are not concerned with a jury based on the 

procedural posture of the case, but we do find the case law discussed K.H.

helpful in our review.
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In their first argument, Appellants complain the court erred in not

permitting Dr. Butler “to testify as an expert as to increased risk of harm in

that her credentials and experience reasonably and rationally envelop this

issue.” Appellants’ Brief at 16. Moreover, they state:

Not only the radiologic detection of a tumor or mass, but also its

growth and potential negative impact if it goes undiscovered, are

intertwined and often subject to a multi-disciplinary approach in

diagnosis and treatment. Dr. Butler’s extensive experience and

knowledge of each of these aspects is well within her purview and

an appropriate subject for her testimony.

Id. In support of their argument, they rely on two cases — TongSommerford v. Abington Memorial Hospital, 190 A.3d 631 (Pa. Super.

2018), and McFeeley v. Shah, 226 A.3d 582 (Pa. Super. 2020).

Additionally, Appellants contend that the trial court ignored “an excerpt

from Dr. Butler’s report which relates directly to evidence of increased risk of

harm from a radiologic perspective.” Appellants’ Brief at 20. They cite to the

following: 

Careful side-by-side comparison with prior studies, a standard

practice in mammographic interpretation, is essential for the early

diagnosis of breast cancer. It is the goal of every reasonable and

well-trained radiologist to detect new potentially significant

findings on mammography at the smallest size at which they can

be perceived. When such findings are allowed to grow, the benefit

of screening mammography in reducing breast cancer mortality is

diminished.

Id. (quotation marks omitted). Appellants maintain:

This one paragraph demonstrates why early detection of

suspicious findings leads to a better outcome. They go hand-inhand. Thus, the failure of the radiologist to detect a tumor or

mass in its early stages, by normal progression, gives an increase
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risk of harm to the patient. This passage authored by Dr. Butler

constitutes sufficient evidence that [Dr. Leontiev’s] negligence in

failing to detect a mass at its earliest stages naturally gave rise to

an increased the risk of harm to [Kelly] from a radiologic or

mammographic standpoint, about which Dr. Butler is certainly

qualified to opine.

Id. at 20-21 (emphasis in original).

Here, the trial court opined the following:

[Appellants] countered [Dr. Leontiev’s motion in limine argument]

that Dr. Butler was qualified to render an opinion on causation by

virtue of her education, training and experience in the detection

of breast cancer and the effects of delayed diagnosis and as a

result of her active engagement in the full-time teaching of

medicine. [Appellants] pointed to Dr. Butler’s Curriculum Vitae

which revealed that she is an Associate Professor in Diagnostic

Radiology in the Breast Imaging Section at Yale University and

Yale New Haven Hospital. She is also involved with a multidisciplinary task group at the Smilow Breast Cancer Center. From

2013 through 2016, she was the Yale Site Principal Investigator

and National Co-Principal Investigator for a clinical trial called

Pivotal Study of Imaging with Opto-acoustics to Diagnose Breast

Masses Detected by Mammography and/or Clinical Findings. 

[Appellants] point out that Dr. Butler has also co-authored a

number of publications pertaining to breast imaging and that she

also has participated in various presentations and lecturers

regarding breast imaging and treatment. [Appellants] argued that

her 24 years of experience working as part of a multi-disciplinary

team of breast cancer specialists, as well as her training,

education and experience in mammography, qualifies her to

recognize evidence of breast cancer and to evaluate the effects of

a delayed diagnosis of breast cancer in general. [Appellants]

argued that Dr. Butler’s background qualified her to render an

opinion on causation under Pennsylvania’s liberal standards for

the qualification of an expert.

[Appellants] claimed that [Kelly], at age 42, was deprived

the chance at breast-conserving treatment due to the failure to

diagnose the cancer, and subsequently underwent a bilateral

mastectomy and, to date, five breast revision surgeries. Once the

cancer was detected, [Kelly]’s treatment was determined after

consultation with oncologists and that treatment plan was
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managed and followed by oncologists. After reviewing Dr. Butler’s

Curriculum Vitae and her deposition, we agreed with [Dr.

Leontiev] that, although Dr. Butler was certainly qualified to

render an expert opinion regarding the detection and

progression of [Kelly]’s breast cancer, she was simply not

qualified to provide an opinion on the management and

treatment of the breast cancer and whether the delayed

detection impacted [Kelly]’s prognosis or the treatment

options available to [Kelly].

Our review of Dr. Butler’s Curriculum Vitae reveals that she

does have an impressive background in her field of radiology,

especially with regard to the detection of breast cancer. She has

won awards for teaching diagnostic radiology, attains membership

in various radiology/imaging organizations, has been published on

topics of breast imaging, and has been involved in lectures on

breast imaging. However, there is little information to

suggest that her experience has extended to knowledge

and training on the effect a delayed diagnosis has on the

severity of a patient’s breast cancer and/or the necessity

of a more aggressive treatment once the cancer has been

detected.

[Appellants] have provided Dr. Butler’s Affidavit which was

attached to [Appellants’] Brief in opposition to the Omnibus Motion

in Limine. In the Affidavit, Dr. Butler affirms her involvement and

vast experience in the field of radiology with emphasis on breast

imaging. In addition, Dr. Butler states:

9. I have 24 years of experience working with a multi

disciplinary team of breast cancer specialists. As part of my

training, education and experience in mammography, I am

qualified to recognize evidence of breast cancer on

mammography and to evaluate the effects of a

delayed diagnosis of breast cancer in general terms.

Dr. Butler’s Curriculum Vitae describes her participation in the

multi disciplinary team as follows:

Ultimate Opinions in Medicine Panelist – national multidisciplinary breast cancer expert opinion group formed to

provide expert-level education and improve cancer care in

the medical community at-large through virtual Tumor

Board-like reviews of anonymized cases.
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While we acknowledge Dr. Butler’s inclusion in a team of

specialists who deal with cancer treatment, there is no

indication of what role she has played on the multidisciplinary team beyond the field of imaging, whether she

is involved in assessing treatment options for a patient,

and if so, what training and experience she relies upon in

order to make such assessments. Likewise, there is no

suggestion that once Dr. Butler determines the presence of

indicators of breast cancer, she is involved in

recommendations and/or management of specific

treatment plans or with following through with a patient’s

cancer treatment. We believe the circumstances of this case

require that such information be provided by an oncologist. 

Moreover, it was [Appellants’] burden to prove that the delay in

detection impacted [Kelly]’s condition and/or course of treatment. 

We do not believe that Dr. Butler’s opinion, even if admitted at

trial, would have established this vital part of [Appellants’] case.

Trial Ct. Op. at 6-10 (citations & quotation marks omitted; emphases added). 

We discern no abuse of discretion with the trial court’s conclusion that

Dr. Butler was not competent to render an expert opinion on causation

(including the increased risk of harm) to the requisite degree of medical

certainty. At issue in this case is Dr. Leontiev’s oncologic treatment and

decision-making following the radiologic detection of Kelly’s early-stage breast

cancer. Appellants alleged that as a result of Dr. Leontiev’s purported

negligent actions, she had to undergo double mastectomies, chemotherapy,

radiation, and multiple reconstructive surgeries. As such, Appellants’ burden

of proof was to demonstrate that Dr. Leontiev’s alleged failure to timely detect

the cancer increased the risk that such treatment was required and the ability

to obtain less invasive treatment was not possible. See Hamil, 392 A.2d at

1288. 
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Dr. Butler’s background demonstrates that as a radiologist, she is

concerned with the detection of cancer, not the treatment of detected breast

cancer. Notably, the doctor averred that while she has experience with

working as part of a team of breast cancer specialists, she was qualified “to

evaluate the effects of delayed diagnosis of breast cancer in general terms.” 

Appellants’ Brief in Opposition to Dr. Leontiev’s Motion in Limine Challenging

Appellants’ Expert Evidence, 9/23/22, at Exhibit B (Affidavit of Dr. Butler,

9/13/22, at 1) (unpaginated) (emphasis added). This general averment is

deficient where the law requires an expert’s opinion demonstrate, with a 

reasonable degree of medical certainty, that a defendant’s conduct increased

the risk that the harm actually sustained by the plaintiff. Gradel, 421 A.2d

at 679. Moreover, Appellants have not pointed to any part of Dr. Butler’s

education, experience, or skill set that demonstrates to what extent she is

involved in the treatment and course of action following a diagnosis — Dr.

Butler fails to specify whether she is involved in entire treatment program or

just a specific part (meaning detection of the cancer).

15

 

____________________________________________

15 Notably, Appellant would need to demonstrate that the harm suffered by 

Kelly necessitated more invasive treatment — such as the radiation and 

chemotherapy. We note that at her deposition, Kelly acknowledged some of 

her doctors questioned the necessity of these procedures. See i.e. Oral 

Deposition of Kelly A. Velesaris at 89-93 (Kelly acknowledging that: (1) Dr. 

Kristine Widders, M.D., sent her a letter stating there was no indication for 

chemotherapy; (2) Dr. Jennifer Rosenberg, M.D., recommended that radiation 

would not provide a benefit in her case; and (3) Dr. Leah VonReyn Cream, 

M.D., discussed chemotherapy but advised against it).
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We now turn to the cases Appellants relied on, Tong-Sommerford and

McFeeley, in their appellate argument. In Tong-Sommerford, the plaintiffdecedent died after a feeding tube that was supposed to be inserted into his

stomach was improperly placed into his lung by a hospital radiologist. The

defendant-doctor incorrectly interpreted the x-ray image as “showing

termination of the feeding tube in decedent’s stomach when, in fact, it 

terminated in [decedent’s] left lung.” Tong-Summerford, 190 A.3d at 637.

The matter proceeded to a jury trial, where the decedent’s expert was

qualified to testify about increased risk of harm but not causation. Id. at 647. 

The jury returned a verdict in favor of the plaintiff and against the defendantdoctor and her employer. The defendant-doctor argued the trial court erred

in failing to grant their motion for judgment notwithstanding the verdict

(JNOV) due to the plaintiff’s “failure to present competent evidence to support

[the] negligence claim.” Id. at 640. The defendants

stress[ed] that while [the radiology expert] testified [the doctor] 

had breached the necessary standard of care when she did not 

order an additional study of the [decedent]’s chest upon realizing 

an abdominal study had been done, he did not testify that there 

had been a breach in the standard of care with regard to [the 

doctor]’s interpretation of the actual study performed.

Id. They further contended:

the trial court erred and abused its discretion when it only partially 

granted their motion in limine to preclude [the plaintiff]’s expert . 

. . from testifying to causation issues that allegedly exceeded his 

expertise. They maintain that as a radiologist, [the expert] did 

not possess the necessary training and experience to provide 

competent trial testimony pertaining to internal medicine and 

forensic pathology. . . . 
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Id. at 646.

A panel of this Court determined the trial court “did not abuse its 

discretion in permitting [the radiology expert] to opine that the deviations in 

the standard of care increased the risk of harm[.]” Tong-Summerford, 190

A.3d at 647. Relying on the trial court’s reasoning, the panel noted: (1) the

radiology expert’s “qualifications as a board certified radiologist with 30 years 

of experience in the field of radiology qualified him to provide an expert 

opinion that the misplacement of a feeding tube in [the] decedent’s lung 

increased the risk of harm to the decedent[;]” (2) the defendants’ “claim of 

error is undermined by [the defendant-doctor’s] own acknowledgment that a 

misplaced feeding tube into a patient’s lung could increase the risk of harm to 

the patient[;]” and (3) “[i]t was within the province of the jury to weigh this 

testimony as to [the expert’s] lack of knowledge in this regard which, 

arguably, undermined his earlier statements at trial concerning [the 

defendant-doctor’s] failure to order another radiology study.” Id. at 648.

Contrary to Appellants’ argument, Tong-Summerford supports the

trial court’s conclusion in the present matter where the court precluded the

radiology expert from testifying about causation as that issued exceeded the

doctor’s expertise. Appellants indicated that they would be calling Dr. Butler

as a causation expert. As mentioned above, Appellants were relying on Dr.

Butler’s expert opinion to establish that the delayed diagnosis caused the 

progression of Kelly’s breast cancer, which necessitated the treatment she 
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chose. Moreover, unlike in Tong-Summerford, Appellants have only

proffered a generalized statement — via Dr. Butler — concerning the increased

risk of harm. As such, Appellants’ reliance Tong-Summerford is misplaced.

Next, in McFeeley, the plaintiff-decedent died following complications

from a bowel perforation that stemmed from the delayed diagnosis of ovarian

cancer. McFeeley, 226 A.3d at 586. The plaintiff filed a medical negligence

complaint against the defendant-doctor, alleging the delay in diagnosis and

treatment increased the risk of harm to the plaintiff. Id. One of the plaintiff’s

arguments was a claim that “the trial court erred in concluding that [the 

radiologist expert for the defense] qualified as an expert for causation 

purposes under the MCARE Act standard.” Id. at 597. 

A panel of this Court concluded “the trial court properly held [the 

radiologist] possessed the necessary qualifications to interpret radiology 

reports related to the gastrointestinal tract so as to provide competent 

testimony related to causation.” McFeeley, 226 A.3d at 598. It merits 

mention that the panel also “agree[d] with the trial court’s sound reasoning[, 

where the expert], a board-certified gastrointestinal radiologist, offered an 

opinion as to causation based on his review of CT scans, as well as a barium 

enema” and concluded “the trial court did not abuse its discretion in concluding 

[the expert] demonstrated that he has a reasonable pretension to specialized 

knowledge on the subject matter in question.” Id. at 597 (citation & quotation 

marks omitted). 
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McFeeley is distinguishable from the present matter based on the

following. The radiology defense expert in that case was permitted to offer a

limited expert opinion to what caused the perforation (diverticulitis), not that

a delayed diagnosis of cancer at an earlier stage increased the risk of harm

that the decedent would suffer a perforation. Moreover, we point out that the

plaintiff in McFeeley retained a gynecologist oncologist expert, who

“explained that a staging system is used with regard to cancer in order to give 

a prognosis as to a patient’s chances of surviving the cancer.” McFeeley, 226

A.3d at 587. As such, Appellants’ reliance on McFeeley is also misplaced.

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

precluding Dr. Butler from offering expert testimony on causation under the 

MCARE Act.

Regarding Appellants’ second argument, they claim the trial court erred 

in failing to admit Dr. Forman as an expert witness regarding damages. See

Appellants’ Brief at 21. Specifically, they state:

Dr. Forman met with Kelly on two occasions for the purpose

of evaluating how her delayed breast cancer diagnosis impacted

her emotionally and psychologically, and influenced her decisions

regarding her treatment. He is not in any manner opining as to

whether there was a delayed diagnosis of her cancer, or whether

there was an increased risk of harm that occurred due to [Dr.]

Leontiev’s negligence. Rather, assuming these two issues to be

true, he is evaluating the impact they had on Kelly’s emotional

state and her decision-making relative to her treatment, as well

as the effect, in terms of damages, on her emotional health and

well-being post-diagnosis.
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Id. at 21-22. Moreover, Appellants assert that because Dr. Leontiev’s defense

focuses on

whether the aggressive treatment Kelly chose to undergo was

absolutely necessary[,] Dr. Forman’s role is to explain, from a

psychiatric point of view, how Kelly’s state of mind, particularly

with regard to her knowledge that there was a cancerous mass in

her body for two years before it was discovered, impacted her

treatment decisions following diagnosis.

Id. at 22. Appellants maintain “Dr. Forman’s testimony is not offered to

improperly boost the credibility of Kelly’s testimony.” Id.

Keeping our standards of review in mind, we note that in Dr. Forman is

board-certified in general psychiatric medicine with a subspeciality in forensic

psychiatry. See Trial Ct. Op. at 3. In his expert report, Dr. Forman averred

the following, in relevant part: “When [Kelly] was finally diagnosed, her

physicians provided her a menu of treatment options. She chose from that

menu. If the cancer had been diagnosed earlier, it is reasonably to conclude

that menu would not have included as many of the disfiguring and systemic

treatments [Kelly] received.” Dr. Leontiev’s Motion in Limine at Exhibit “C” 

(Dr. Forman’s Report re Kelly Velesaris, 6/7/21, at 9).

The trial court explained its rationale for precluding Dr. Forman as

follows:

Although [Dr. Forman] was identified as a damages witness, [his]

report could be construed to refer to the effect the delayed

diagnosis had on the possible worsening of [Kelly]’s cancer and

the treatment options which became necessary as a result of the

delayed diagnosis. Due to this possibility, [Dr. Leontiev]

apparently proceeded with caution in including this aspect of Dr.

Forman’s opinion in the Omnibus Motion in Limine. We agreed
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with this assessment, and for that reason included Dr. Forman in

our [October 5, 2022, order]. A review of Dr. Forman’s report and

Curriculum Vitae likewise reveals that based on his background in

the field of psychiatry, he does not have the requisite background

to render an opinion regarding the effects of the alleged delay in

detection on [Kelly]’s prognosis and/or the treatment made

necessary by the delay for her breast cancer. Thus, we precluded

his testimony on that issue.

Trial Ct. Op. at 10. We agree with the trial court’s rationale while adding these

additional comments.

As Dr. Leontiev points out, he “never challenged Dr. Forman’s

competency to render causation opinions related to [Kelly]’s alleged emotional

injuries.” Dr. Leontiev’s Brief at 35. Moreover, in his motion in limine, Dr.

Leontiev specifically mentioned that he was not suggesting “Dr. Forman [was] 

unqualified to render a causation opinion relating to any alleged emotional

injuries or disorders resulting from the alleged delay to detect.” Dr. Leontiev’s 

Motion in Limine at 9 n.1. Rather, he pointed out that that “issue is separate 

and distinct from the issue of whether the alleged delay to detect require more 

aggressive treatment or actually resulted in harm to” Kelly. Id. As such, Dr. 

Leontiev emphasizes that he “never challenged Dr. Forman’s competency to 

render an opinion regarding how [Kelly]’s ‘delayed breast cancer diagnosis

impacted her emotionally and psychologically, and influenced her decisions

regarding her treatment.’” Dr. Leontiev’s Brief at 36, quoting Appellants’ Brief

at 21-22.

Moreover, a review of the record reveals that the trial court’s October

5, 2022, order included a ruling relating to Dr. Forman’s competency. See
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Dr. Leontiev’s Brief at 35. Specifically, the court stated, in relevant part, Dr.

Forman was precluded “from expressing an expert opinion as to causation, 

i.e., whether [Kelly] would have had a more favorable prognosis for treatment 

and eventual outcome if the diagnosis of cancer had been made at the earlier 

date(s) suggested by the evidence adduced at trial.” See Order, 10/5/22, at 

3. However, the trial court’s order did not include a finding that Dr. Forman

lacked the competency to offer an expert opinion regarding Kelly’s “delayed

breast cancer diagnosis impacted her emotionally and psychologically, and

influenced her decisions regarding her treatment.” Appellants’ Brief at 21-22. 

As such, his argument — that the trial court erred in finding Dr. Forman was

precluded from providing expert testimony regarding the impact of Kelly’s

emotional state and her decision-making relative to her treatment — has no

merit.

Furthermore, the trial court’s October 5, 2022, order, also provided that

“Dr. Forman is prohibited from expressing an opinion as to whether any 

mental illness interfered with the decision-making process of [Kelly] regarding 

her cancer treatment.” Order, 10/5/22, at 3. However, a review of Appellants’ 

concise statement reveals that they did not preserve a claim regarding mental 

illness expert testimony. The concise statement provided, in pertinent part:

2. [T]he trial court erred in entering summary Judgment in favor

of [Dr. Leontiev], and against [Appellants] because the [court’s] 

October 5, 2022, opinion which prohibited Dr. Howard Forman’s 

testimony is in error. Again, the reason for [the c]ourt’s ruling 

is vague and not discernable from the record. However, Dr. 

Forman is a damages witness only and his testimony would 
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not include his own opinions regarding [Dr. Leontiev’s] 

negligence or causation related thereto. Dr. Forman is 

qualified under subsection (b) of the § 512 of the MCARE Act to 

testify, and to exclude him is in error, again for the reasons set 

forth in [Appellants’] Briefs in Opposition to [Dr. Leontiev’s] 

Motions.

Appellants’ Concise Statement at 2 (emphasis added). Accordingly, any claim 

regarding mental illness expert testimony is waived. See Pa.R.A.P. 

1925(b)(4)(vii) (providing that issues not included in the concise statement

are waived); see also Pa.R.A.P. 302(a) (providing that issues not raised in 

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

Therefore, Appellants’ second argument is unavailing.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/15/2023