J-A20005-20 & J-A20006-20

2021 PA Super 46

LACEY POVRZENICH

v.

JENNIFER K. RIPEPI, M.D.; JENNIFER 

K. RIPEPI PEDIATRICS, LLC; FRANK 

G. DIETTINGER, M.D.; IMAGING 

ASSOCIATES OF GREATER 

PITTSBURGH, LLC; AND 

MONONGAHELA VALLEY HOSPITAL 

LACEY POVRZENICH, A MINOR, BY 

AND THROUGH HER PARENTS AND 

NATURAL GUARDIANS, JANNA 

PALLOTTA AND EDWARD 

POVRZENICH

v.

DAWN R. MCCRACKEN, M.D.; DAWN 

MCCRACKEN, M.D., P.C.; 

MONONGAHELA VALLEY HOSPITAL; 

AND MON VALLEY COMMUNITY 

HEALTH SERVICES, INC.

APPEAL OF: LACEY POVRZENICH, 

JANNA PALOTTA AND EDWARD 

POVRZENICH

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1764 WDA 2019

Appeal from the Judgment Entered December 6, 2019

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

No(s): 2015-4727

LACEY POVRZENICH, A MINOR BY 

AND THROUGH HER PARENTS AND 

NATURAL GUARDIANS, JANNA 

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IN THE SUPERIOR COURT OF

 PENNSYLVANIA
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PALLOTTA AND EDWARD 

POVRZENICH 

Appellants

v.

DAWN R. MCCRACKEN, M.D., 

DAWN MCCRACKEN, M.D., PC.; 

MONONGAHELA VALLEY 

HOSPITAL; AND MON VALLEY 

COMMUNITY HEALTH SERVICES, 

INC.

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 No. 1765 WDA 2019

Appeal from the Judgment Entered December 6, 2019

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

No(s): 2013-5772

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

OPINION BY BOWES, J.: FILED: MARCH 19, 2021

Lacey Povrzenich (“Lacey” or “Plaintiff”), appeals at two numbers from 

the judgment1 entered in her favor and against Mon Valley Community Health 

Services (“MVCHS”) in this medical malpractice action. Plaintiff, the verdict 

____________________________________________

1 Plaintiff filed two notices of appeal purporting to appeal from two separate 

orders entered on October 25, 2019: the order denying her motion for posttrial relief, and the order granting in part and denying in part her motion for 

delay damages. Although an appeal properly lies from the judgment following 

the disposition of such motions, where judgment is subsequently entered, we 

will treat the appeal as one from the judgment. See Johnston the Florist, 

Inc. v. Tedco Constr. Corp., 657 A.2d 511, 514 (Pa.Super. 1995) (holding 

appeal lies from judgment, not from the denial of post-trial motions); LaRue 

v. McGuire, 885 A.2d 549, 551 n.1 (Pa.Super. 2005) (holding order granting 

or denying delay damages is generally interlocutory and not appealable unless 

reduced to judgment). Judgment was entered on December 6, 2019, and we 

have amended the caption accordingly. 
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winner below, contends that she is entitled to a new trial limited to damages 

because the trial court erroneously precluded the testimony of her expert life 

care planner, Dana Bissontz, as to Plaintiff’s future medical expenses. 

Additionally, Plaintiff alleges that the trial court erred in the computation of 

delay damages by excluding certain time periods from consideration. We sua 

sponte consolidated the two appeals pursuant to Pa.R.A.P. 513, and, after 

careful review, we affirm the judgment in part, vacate in part, and remand. 

The facts giving rise to the instant medical malpractice action are as 

follows. Lacey was born on January 31, 1996, with a cleft palate for which 

she underwent several surgeries. From 1997 to 2007, Lacey was treated for 

five urinary tract infections (“UTI”) by her pediatrician, Dr. McCracken. 

In 2008, Lacey changed primary care providers and came under the 

care of pediatrician Jennifer Ripepi. M.D. In February, while under Dr. Ripepi’s 

care, Lacey was treated at Monongahela Valley Hospital for dehydration. A 

urine screen at that time revealed a UTI, as well as high creatinine levels. A 

computed tomography (“CT”) scan of her pelvis was interpreted as normal by 

Dr. Frank Diettinger. The results were forwarded to Dr. Ripepi. A course of 

antibiotics were prescribed for the infection, and once they were completed, 

Dr. Ripepi ordered another culture, which was reported as normal. In May 

2008, Lacey returned to Dr. Ripepi with complaints of left-sided abdominal 

pain occurring daily and lasting several hours. Dr. Ripepi reviewed the urine 

test results and again prescribed antibiotics. 
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Shortly thereafter, the family relocated and Lacey was seen at MVCHS. 

On March 3, 2009 and May 4, 2010, Lacey was noted to have elevated blood 

pressure. Two weeks later, on May 18, 2010, Lacey went to the Mon Valley 

Hospital emergency room, and was lifeflighted to Children’s Hospital in 

Pittsburgh. There she was diagnosed with end-stage renal disease secondary 

to severe reflux nephropathy. Lacey was advised that she would need a 

kidney transplant, and placed on dialysis immediately. 

In 2015, Lacey underwent a kidney transplant with a kidney donated by 

her mother. Since the transplant, she has shown signs of rejection and 

required dialysis, and it is likely that Lacey will require a second kidney 

transplant in the future. 

On September 20, 2013, Janna Palotta and Edward Povrzenich, parents 

of then seventeen-year-old Lacey, filed a medical negligence action on her 

behalf at G.D. 2013-5772 against Dr. McCracken, Dawn McCracken, M.D., PC,

Monongahela Valley Hospital, and MVCHS.2 They asserted that these 

Defendants were negligent in failing to conduct further testing, and/or failing 

to refer Lacey to a specialist, resulting in additional damages due to delay in 

diagnosis of her kidney reflux. 

Discovery was ongoing in the case filed at G.D. 2013-5772, when Lacey, 

having reached the age of majority, filed a second medical malpractice action 

____________________________________________

2 Plaintiff originally named Southwestern Pennsylvania Human Services, Inc. 

as a defendant in the action. On April 14, 2014, the parties stipulated to the 

substitution of MVCHS for that entity. 
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at G.D. 2015-4727 against Jennifer K. Ripepi, M.D., Jennifer K. Ripepi 

Pediatrics, LLC., Frank G. Diettinger, M.D., and others. She alleged therein 

that Dr. Ripepi was negligent in failing to follow up on the UTIs and high 

creatinine levels, failing to recognize the abnormal labs, treating Lacey with 

repeated course of antibiotics that aggravated the renal failure, and failing to 

refer Lacey to an appropriate specialist. Dr. Diettinger was allegedly negligent 

for failing to note and report abnormalities shown on CT scans. Lacey 

maintained that if her condition had been detected earlier and properly 

treated, a less invasive surgical procedure could have been performed. 

On September 23, 2015, the trial court granted Plaintiff’s motion to 

consolidate the two actions “for all purposes” at the second docket number 

G.D. 2015-4727. In addition, the caption was amended to reflect both 

captions and the consolidated number. 

A two-week jury trial of the consolidated action commenced on October 

16, 2018. On October 26, 2018, the jury returned a verdict against Dr. 

McCracken and MVCHS, finding that they were negligent, and that their 

negligence was a factual cause of harm to Lacey.

3

 Dr. Ripepi, Dr. Diettinger, 

and Mon Valley Hospital were found not negligent. The jury attributed eightyfive percent of the negligence to Dr. McCracken, and fifteen percent to MVCHS, 

____________________________________________

3 The record reveals that Dr. McCracken settled with Plaintiff prior to trial.
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and awarded Plaintiff $245,573.28 for past medicals, $1 million for past 

economic loss, and $3 million for future noneconomic losses. 

MVCHS filed a timely motion for post-trial relief, which was denied. 

Plaintiff also filed a motion for post-trial relief seeking a new trial limited to 

damages, alleging that the trial court improperly excluded her life care planner 

from testifying as to future medical expenses, which the trial court denied. 

She also filed a motion to mold the verdict to include delay damages, which 

was granted in part and denied in part. 

On November 22, 2019, Plaintiff filed two notices of appeal: one 

designated as an appeal from the order granting in part her motion to mold 

the verdict and add delay damages, and the other purporting to appeal from 

the denial of her motion for post-trial relief.4 Both notices of appeal listed the 

two docket numbers, and were filed at the consolidated number, No. 2015-

4727, but were also noted on the docket for No. 2013-5772. 

This Court assigned appeal number 1764 WDA 2019 to the first notice 

of appeal from the order molding the verdict and awarding delay damages, 

and 1765 WDA 2019 to the second appeal challenging the evidentiary ruling 

excluding the testimony of the life care planner. We then issued a rule in each 

appeal directing Plaintiff to show cause why the appeals should not be quashed 

____________________________________________

4 Judgment was not entered on the verdict against MVCHS until December 6, 

2019. Where, as here, a party appeals prior to entry of judgment, but 

judgment is subsequently entered, we treat that which ought to have been 

done as done. 
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for failure to comply with the Official Note to Pa.R.A.P. 341(a) and 

Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018). Specifically, in 

Walker, the Pennsylvania Supreme Court mandated “that when a single order 

resolves issues arising on more than one lower court docket, separate notices 

of appeal must be filed,” and the failure to do so will result in quashal of the 

appeal. Order, 12/18/19. 

Plaintiff responded to the rule by explaining that there was only one 

lower court docket number, G.D. 2015-4727, because the actions filed at G.D. 

2013-5772 and G.D. 2015-4727, had been consolidated at the latter number. 

See Response to Rule to Show Cause, 12/26/19, at 1. Plaintiff appended to 

her response a copy of the docketing statement that had been attached to

each notice of appeal, and pointed out that the number at which the case was 

heard, G.D. 2015-4727, was noted at the top of the docket. 

By order of December 30, 2019, this Court discharged the rule to show 

cause, but noted that this ruling was not binding upon the panel. Counsel was 

advised that the issue could be revisited by the merits panel, and that counsel 

should be prepared to address the panel’s concerns either in their briefs or at 

oral argument. Order, 12/30/19, at 1. MVCHS raises the issue in its brief, 

and urges this Court to quash the appeals pursuant to Walker. 

Plaintiff and the trial court have complied with Pa.R.A.P. 1925, and the

matter is ripe for our review. Plaintiff presents two issues:

A. Did the trial court err when it granted the Defendant[s’] Motion

to Exclude Plaintiff's Life Care Planner Dana Bissontz from
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testifying, on the basis that she lacked the qualifications to render

opinions on the future medical care and costs of the Plaintiff Lacey

Povrzenich, which deprived the jury of measuring all of the

economic damages of the Plaintiff.

B. Did the trial court err in its calculation of delay damages, when

it excluded three periods of time from the calculation of delay

damages due to extensions of discovery dates, which did not delay

the trial, depriving the Plaintiff Lacey Povrzenich of her right to

additional statutory damages.

Appellant’s brief at 7.

Before we address the merits of the appeal, we must first determine if 

Plaintiff has complied with Walker. MVCHS maintains that Plaintiff initiated 

two actions against two different sets of defendants at two docket numbers. 

Thus, MVCHS contends that this is a case where a single order, i.e., the 

judgment, resolved issues on more than one docket, and that filing a single 

notice of appeal listing both docket numbers was insufficient. See e.g., C.T.E. 

v. D.S.E., 216 A.3d 296, 299 (Pa.Super. 2019) (quashing the appeal, 

pursuant to Walker, where the appellant filed a single, timely notice of appeal 

listing both docket numbers); Commonwealth v. Nichols, 208 A.3d 1087 

(Pa.Super. 2019) (quashing the appeal where the appellant filed one notice of 

appeal with issues that related to three different lower court docket numbers). 
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However, instead of filing separate notices of appeal from the judgment at 

each lower court docket number, Plaintiff filed two notices of appeal from two 

non-final trial court orders.5 

Plaintiff reiterates that, by order of court, two different docket numbers 

were consolidated under one trial court docket number, G.D. 2015-4727, and 

explains that she filed the two appeals at the consolidated number because 

“[w]here two actions are consolidated, only one action retains its identity and 

the others are absorbed by it.” Appellant’s Reply Brief at 2, 4 (citing Kincy 

v. Petro, 2 A.3d 490, 496 (Pa. 2010)). Furthermore, Plaintiff maintained that 

discovery, trial, and the verdict were conducted at the consolidated case 

number. Id. at 5. She contends that although she filed two notices of appeal, 

one notice of appeal filed at the consolidated docket was sufficient to comply 

with Walker. 

Since the filing of the parties’ briefs herein, there have been several 

decisions clarifying the application of Walker. In Commonwealth v. 

Jerome Johnson, 236 A.3d 1141 (Pa.Super. 2020) (en banc) (overruling in 

part Commonwealth v. Creese, 216 A.3d 1142 (Pa.Super. 2019)), this 

Court held that including multiple docket numbers on separately filed notices 

____________________________________________

5 MVCHS acknowledges, however, that this latter defect was cured when 

judgment was subsequently entered on December 6, 2019. See MVCHS’s 

brief at 12 n.7 (citing Johnston the Florist, Inc. v. Tedco Constr. Corp., 

657 A.2d 511, 514 (Pa.Super. 1995) (permitting appeal purporting to be from 

denial of post-trial motions when judgment was subsequently entered). 
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of appeal was not grounds for quashal under Walker. See also

Commonwealth v. Rebecca Johnson, 236 A.3d 63 (Pa.Super. 2020) (en 

banc) (crediting the appellant’s representation that, although the notices of 

appeal contained all three docket numbers, she filed a separate notice of 

appeal at each docket number because the time stamp on each notice was in 

a different location and the time of filing was unique on two of the three 

notices).

We find no merit in Plaintiff’s contention that consolidation below 

obviated the need for two notices of appeal.6 Walker required that separate 

notices of appeal be filed for each docket. See Pa.R.A.P. 341, Official Note 

(“Where . . . one or more orders resolves issues arising on more than one 

docket or relating to more than one judgment, separate notices of appeals 

must be filed.”).

Plaintiff filed two separate notices of appeal at the consolidated number. 

The question is whether it matters for purposes of Walker that the two notices 

of appeal were filed at same docket. Our review of the certified record reveals 

that, following consolidation, all original documents were filed at the 

____________________________________________

6 This was not a complete consolidation because the actions did not “involve 

the same parties, subject matter, issues, and defenses.” Kincy v. Petro, 2 

A.3d 490, 494 (Pa. 2010). See also Malanchuk v. Sivchuk, 148 A.3d 860, 

863-864 (Pa.Super. 2016) (consolidated actions that did not involve identical 

parties were not completely consolidated). Thus, Plaintiff’s reliance upon 

Kincy for the proposition that the action filed at No. 2013-3772 ceased to 

exist when it was consolidated at No. 2015-4727, is mistaken. 
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consolidated number, including motions in limine, the verdict, post-trial 

motions, praecipes for judgment, and notices of appeal. For instance, 

judgment was entered herein at the consolidated docket number, and noted 

on the 5772 docket. It appears that following consolidation, the 5772 docket 

was dormant for filing purposes. However, that docket reflects the filings at 

the consolidated docket number, including the filing of two separate notices 

of appeal each bearing the two docket numbers. 

Herein, Plaintiff filed two separate notices of appeal, albeit for the wrong 

reason. Furthermore, the fact that each notice contained both docket 

numbers is not grounds for quashal under Walker. See Jerome Johnson, 

supra. Nor do we find it problematic that both notices of appeal were filed at 

the consolidated docket number. This was the filing procedure utilized by the 

Prothonotary throughout the litigation. Moreover, the filing of the two 

separate notices of appeal bearing both docket numbers adequately conveyed 

to this Court that two dockets were implicated, and that separate appellate 

docket numbers were required. Consequently, this Court retained the ability 

to exercise its discretion to consolidate the appeals pursuant to Pa.R.A.P. 513, 

which was one of the purposes cited by the Walker Court for requiring that 

separate appeals be filed for each implicated docket. See Walker, supra at 

976 (holding that Rule 341(a) must be read consistently with the Rules 512 

and 513 governing joint appeals, and that the filing of a single notice of appeal 

from an order arising on more than one docket effectively consolidated 
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appeals without either the approval of the Superior Court or the agreement of

the appellees as required in Rule 513). For these reasons, we find the filing 

of two separate notices of appeal sufficient under Walker, and decline to 

quash these appeals. 

We turn now to the merits of this consolidated appeal. Plaintiff contends 

that the trial court erred in denying her motion for a new trial limited to 

damages because the testimony of Life Care Planner Nurse Dana Bissontz 

regarding Plaintiff’s future medical expenses was improperly excluded. 

Our standard of review from a trial court’s grant or denial of a new trial 

is whether the trial court abused its discretion. Mader v. Duquesne Light 

Co., 241 A.3d 600, 607 (Pa. 2020). We review the underlying matter that 

formed the basis for the trial court’s decision to determine “whether a mistake 

occurred and whether that mistake was sufficient to order a new trial.” Id. 

If an error occurred, we must determine whether the trial court abused its 

discretion in ruling on the request for a new trial, i.e., “whether the trial court 

has rendered a judgment that is manifestly unreasonable, arbitrary, or 

capricious, has failed to apply the law, or was motivated by partiality, 

prejudice, bias, or ill will.” Id. (citations omitted). 

The specific error identified by Plaintiff involves the trial court’s exclusion 

of expert testimony. The “[a]dmissibility of expert testimony is left to the 

sound discretion of the trial court, and as such, this Court will not reverse the 
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trial court’s decision absent an abuse of discretion.” Snizavich v. Rohm & 

Haas Co., 83 A.3d 191, 194 (Pa.Super. 2013). 

The following legal principles inform our review. Pa.R.E. 702 governs 

testimony by expert witnesses. It provides in pertinent part that “[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 . . . the expert’s 

scientific, technical, or other specialized knowledge is beyond that possessed 

by the average layperson” and if it “will help the trier of fact to understand 

the evidence or to determine a fact in issue.” Pa.R.E. 702(a)(b). Under

Pennsylvania law, the standard for qualification of an expert witness is a liberal

one. See George v. Ellis, 820 A.2d 815, 817 Pa.Super. 2003) (citation

omitted). “In order to qualify as an expert witness in a given field, a witness 

normally need only possess more expertise than is within the ordinary range 

of training, knowledge, intelligence, or experience.” Miller v. Brass Rail

Tavern, Inc., 664 A.2d 525, 528 (Pa.1995)). If an expert witness has any 

reasonable pretension to specialized knowledge on the subject under 

investigation, she may testify and the weight to be given to such testimony is 

for the trier of fact to determine. See James v. Albert Einstein Medical 

Center, 170 A.3d 1156, 1162 (Pa.Super. 2017).

Plaintiff contends that the trial court abused its discretion excluding Life 

Care Planner Dana Bissontz. The trial court offered two bases for the exclusion 

of her expert testimony. First, the court concluded that Nurse Bissontz had 
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"no specialized knowledge, skill, experience, training or education relating to 

kidney transplant patients’ needs." Trial Court Opinion, 3/9/20, at 9-10. 

Since Nurse Bissontz never worked with a kidney transplant patient, she was 

not qualified as an expert on the lifetime needs of a kidney transplant patient. 

Id. at 10. In addition, the trial court ruled that no foundation was laid as to 

the testing, procedures, and medications that are required for a patient who 

has undergone a kidney transplant and who likely will require a second kidney 

transplant. Id. 

Plaintiff contends that Dana Bissontz had the requisite knowledge, 

experience, training and education to testify about a life care plan projecting 

future costs for a person like Lacey, whom physicians opined would likely need 

another kidney transplant in the future. According to Plaintiff, the trial court’s 

concerns goes to the weight of Nurse Bissontz’s testimony rather than its 

admissibility. As a consequence of the trial court’s error, Plaintiff argues that 

damages for future medical damages were not submitted to the jury, which 

was highly prejudicial. 

With regard to future medical expenses, it is plaintiff’s burden to prove 

not only that such expenses will be incurred, but the estimated cost of such 

services. We have recognized that such information is not within the general 

knowledge of laypersons, and that expert testimony is required to avoid the 

prospect of a verdict based on speculation. See Cohen v. Albert Einstein 

Medical Center, 592 A.2d 720, 729 (Pa.Super. 1991). Generally, physicians 
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provide the foundational testimony for the future medical care and treatment 

that will be necessary. Life care planners research the price of the various 

procedures, treatments, and medications associated with the future medical 

care and render expert opinions on the cost to an individual. A life care 

planner is a recognized expert in Pennsylvania who “reviews medical records 

and bills to formulate an expert opinion projecting the future medical costs of 

an individual over her lifetime.” Deeds v. Univ. of Pennsylvania Med. Ctr., 

110 A.3d 1009, 1012 (Pa.Super. 2015).

Dr. Tej Mattoo, Plaintiff’s expert in pediatric kidney disease and 

transplants opined that Plaintiff would likely require another kidney transplant, 

perhaps dialysis, and the medications and other services that accompany a 

transplant. He treated patients who have had kidney transplants. N.T. Jury 

Trial Vol. II, 10/17/18, at 90. Dr. Mattoo described a kidney transplant as a 

“life-changing event,” and offered the following insights. Id. at 92. Dr. Mattoo 

explained that transplant patients remain under “intense medical care 

throughout their li[ves]. Id. When things are going well, the time between 

clinic visits can be as long as three months. Id. Otherwise, follow up is much 

more often. Id. Transplant recipients must get lab work at each follow-up 

visit, and often in-between visits. Id. Such patients are usually taking five 

to ten medications that are adjusted at regular visits. They may also need to 

abide by strict dietary restrictions. Many times, according to Dr. Mattoo, the 

transplanted kidney will start to fail, and the patient repeats the cycle that led 
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to the first transplant: “chronic kidney disease, then dialysis, and then another 

transplant.” Id. at 93. Counseling and support services are provided while 

patients are undergoing dialysis and after a transplant. Dr. Mattoo also 

examined the bills and charges following Lacey’s first transplant, and he 

testified that those bills totaling $242,573.28 were reasonable, necessary, and 

related to the care she required. Id. at 95. See Plaintiff’s Exhibit 1. 

Dana Bissontz, a certified life care planner with twenty years’ experience 

as a registered nurse, determined the costs associated with the future medical 

care that Dr. Mattoo outlined. Nurse Bissontz interviewed Lacey, her parents, 

reviewed the medical records, referenced numerous sources that provided 

information about renal disease and coding for kidney transplantation, and 

prepared an expert report. She calculated the base cost for anticipated 

services, then the annual cost, and multiplied the latter figure by Lacey’s life 

expectancy. The expenses included testing, pre-transplant management, 

future medical care, and medications. Nurse Bissontz prepared a life care plan 

containing her opinions rendered to a reasonable degree of certainty as a life 

care planner and registered nurse with twenty years of experience. 

At trial, Plaintiff called Nurse Bissontz to offer testimony consistent with 

her expert report as a certified life care planner. Voir dire on her qualifications 

was conducted, wherein Plaintiff established her education as a nurse, and her 

work experience in diverse settings, including nursing homes, operating 
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rooms, and conducting utilization review. In addition, Nurse Bissontz obtained 

certification as a life care planner from Capital University’s law school. 

Defense counsel cross-examined Nurse Bissontz regarding her 

qualifications, and thereafter objected to her testimony. Defendants argued 

that Nurse Bissontz had no particular expertise with respect to individuals who 

have undergone kidney transplants, and was not qualified to render medical 

conclusions. Plaintiff countered that Nurse Bissontz’s credentials, education, 

and experience, in both medicine and utilization review, qualified her to testify 

in this case, and that any lack of specific experience with kidney transplant 

patients went to the weight of her testimony, not its admissibility. The trial 

court excluded Nurse Bissontz’s testimony, finding that she was not qualified 

because she lacked experience with kidney transplants.7 

We find that Dana Bissontz had sufficient specialized knowledge and 

experience to offer her expert opinions regarding the future medical expenses 

associated with post-kidney transplant care and a second kidney transplant 

anticipated by Dr. Mattoo. The fact that she had little experience with kidney 

transplant patients did not disqualify her from using her skills and experience 

____________________________________________

7 Prior to trial, MVCHS had filed a motion in limine seeking to exclude Dana 

Bissontz from testifying where she was relying upon Dr. Mattoo’s opinions in 

formulating her opinions. MVCHS maintained that Dr. Mattoo’s opinions were 

speculative. By order dated October 9, 2018, the motion was denied. 
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to analyze the costs associated with such a procedure and its aftermath.8 The 

matter under investigation was not a kidney transplant per se, but the costs 

associated with such a procedure. The mere fact that Nurse Bissontz had not 

personally cared for a kidney transplant patient would not hamper her ability 

to research and accurately tabulate the expenses associated with such a 

procedure. Any lack of experience with kidney transplants in particular went 

to the weight of her testimony, not to its admissibility. See e.g. Wright v. 

Residence Inn by Marriott, Inc., 207 A.3d 970, 977 (Pa.Super. 2019) 

(finding abuse of discretion where trial court precluded an internist from 

offering expert opinions regarding an orthopedic injury in a slip and fall case, 

as strength of the internist’s credentials went to the weight of his testimony, 

not its admissibility). 

Nor can we affirm the trial court’s ruling based on a lack of foundation. 

Nurse Bissontz was excluded after voir dire on qualifications only. She never 

had the opportunity to explain the factual foundation for her expert opinions. 

Consequently, we conclude that the trial court abused its discretion in 

precluding Nurse Bissontz from testifying at trial. 

____________________________________________

8 Nurse Bissontz was not offering standard of care testimony, which typically 

involves a heightened requirement for expert medical testimony involving a 

specialized area of practice, if the defendant is a specialist. See e.g. Wexler 

v. Hecht, 847 A.2d 95, 99-100 (Pa.Super. 2004) aff'd, 928 A.2d 973 (Pa. 

2007). 
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Having found that the trial court abused its discretion in excluding Nurse 

Bissontz’s testimony, we must determine whether the evidentiary ruling was 

prejudicial, i.e., whether it affected the verdict. See Wright v. Residence 

Inn by Marriott, Inc., 207 A.3d 970, 978 (Pa.Super. 2019). The trial court 

acknowledged that if its ruling was deemed to be an abuse of discretion, it 

was prejudicial. See Trial Court Opinion, 3/6/20, at 11 (noting that prejudice 

“was clearly established as the court did not instruct the jury as to future 

medical cost and no line item for future medical costs was on the verdict 

slip.”). In short, Plaintiff was precluded from offering evidence of, and 

recovering, substantial future medical expenses. Hence, we find that some 

form of a new trial is required. The question remaining is the scope of the 

new proceeding. 

Plaintiff maintains that a new trial limited to damages and involving only 

the defendants found liable would suffice.9 We agree that liability was fully 

determined, that it was not intertwined with damages, and that a new trial 

limited to damages is appropriate herein. However, our Supreme Court 

recently addressed the scope of a retrial on damages only in Mader, supra,

and we find it instructive. The Court “reject[ed] the notion that a per se rule 

exists requiring a remand for all damages whenever a new trial is awarded on 

____________________________________________

9 Plaintiff sought a new trial limited to damages or “such other relief as the 

Court deems appropriate.” Plaintiff’s Motion for Post-Trial Relief in the Nature 

of a New Trial Limited to the Plaintiff’s Damages, 11/5/18, at 11.
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certain damages.” Id. at 614. The High Court added that when a trial court 

is facing the decision to relitigate all damages in a new trial, or just certain 

discrete damages, “it should discern whether the properly awarded damages 

in the first trial were ‘fairly determined,’ and, if so, whether they are 

sufficiently independent from, and are not ‘intertwined’ with the erroneously 

determined damages.” Id. 

There is no allegation that damages for past medical expenses, past 

non-economic loss, and future non-economic loss, defined as “pain and 

suffering, embarrassment and humiliation, loss of enjoyment of life,” were 

improperly determined. See Verdict Slip, 10/26/18. Since no evidence of 

damages for future medical expenses was presented, the jury was not 

instructed on such damages and the verdict slip did not contain lines 

permitting the jury to assess future damages for medical expenses. We find 

that damages for future medical expenses are sufficiently independent and 

discrete from the other damages as to permit a new trial limited to those 

damages only. Hence, we remand for a new trial limited to damages for future 

medical expenses.10 

____________________________________________

10 Defendants argue that since Plaintiff did not offer her economist James 

Kenkel, Ph.D., and there was no order precluding him from testifying, he 

cannot testify at the retrial on damages. We disagree. Dr. Kenkel’s expert 

opinion and calculations were based on Nurse. Bissontz’s life care plan. Once 

Ms. Bissontz was precluded from testifying, there was no foundation for Dr. 

Kenkel’s opinions, which was correctly pointed out by counsel for defendant. 

See N.T. Jury Trial Vol. III, 10/18/18, at 164 (“Your Honor, the testimony of 
J-A20005-20 & J-A20006-20

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Plaintiff’s final issue involves the calculation of delay damages. Since 

we are remanding for a new trial on damages for future medical expenses, 

and the jury’s award will not be known until the new trial is completed, it 

might appear at first blush that any claim involving delay damages would be 

moot. However, at issue is whether the trial court erred in excluding from the 

calculation of delay damages three periods when Plaintiff sought and obtained 

discovery extensions, and that issue is likely to reoccur following the new trial 

and the recalculation of delay damages. Hence, we will address it. 

Delay damages are governed by Rule 238, which provides in pertinent 

part:

Rule 238. Damages for Delay in Actions for Bodily Injury, Death 

or Property Damage

(a)

(1) At the request of the plaintiff in a civil action seeking monetary 

relief for bodily injury, death or property damage, damages for 

delay shall be added to the amount of compensatory damages 

awarded against each defendant or additional defendant found to 

be liable to the plaintiff in the verdict of a jury, in the decision of 

the court in a nonjury trial or in the award of arbitrators appointed 

under section 7361 of the Judicial Code, 42 Pa.C.S. § 7361, and 

shall become part of the verdict, decision or award.

(2) Damages for delay shall be awarded for the period of 

time from a date one year after the date original process 

was first served in the action up to the date of the award, 

verdict or decision.

____________________________________________

[Dr. Kenkel] is obviated by the fact that you excluded this witness [Dana 

Bissontz)]”). Following Ms. Bissontz’s testimony at the limited new trial, there 

is no impediment to Dr. Kenkel offering expert economic testimony evaluating 

the life care plan. 
J-A20005-20 & J-A20006-20

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(3) Damages for delay shall be calculated at the rate equal to the 

prime rate as listed in the first edition of the Wall Street Journal 

published for each calendar year for which the damages are 

awarded, plus one percent, not compounded.

(b)

(1) The period of time for which damages for delay shall be 

calculated under subdivision (a)(2) shall exclude the 

period of time, if any,

(i) after the defendant made a written offer 

which complied with the requirements of 

subdivision (b)(2), provided that the 

plaintiff obtained a recovery which did not 

exceed the amount described in subdivision 

(b)(3), or 

(ii) during which the plaintiff caused delay 

of the trial.

Pa.R.C.P. 238 (emphases added).

Plaintiff filed a timely motion for delay damages herein. There was no 

dispute that Plaintiff was entitled to delay damages; the controversy centered 

on the amount of such damages.11 MVCHS filed a response in which it alleged 

that the three periods for which Plaintiff sought and received discovery 

extensions should be excluded from the calculation. In addition, MVCHS 

pointed to three shorter periods of delay when Plaintiff failed to timely file 

pretrial statements and expert reports. Finally, MVCHS argued that the entire 

____________________________________________

11 Although MVCHS submitted a written settlement offer prior to trial, Plaintiff’s 

recovery exceeded that offer by more than 125%. 
J-A20005-20 & J-A20006-20

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two-year period from 2015-2017 should be excluded for purposes of the delay 

damages calculation because consolidation delayed trial for that period. 

The trial court found that the three periods when Plaintiff requested and 

received extensions of discovery were delays attributable to Plaintiff. Trial 

Court Opinion, 3/6/20, at 12. In each instance, the trial court found that the 

extensions were sought to enable Plaintiff to collect additional medical records 

to submit to her experts for review, and not due to any recalcitrant conduct 

on the part of Defendants. Accordingly, the trial court excluded the time from 

August 27, 2014 through December 31, 2016, which was the entire extended 

discovery period. In rejecting Plaintiff’s argument that these discovery 

extensions did not delay trial, the court explained that, “a trial date is not set 

until discovery is closed and Pre-Trial Statements are filed.” Id. at 13.

We review a trial court’s ruling under Rule 238 for an abuse of discretion. 

Tindall v. Friedman, 970 A.2d 1159, 1177 (Pa.Super 2009). We will not 

reverse a decision of the trial court regarding the imposition of such damages 

absent such an abuse. Id. 

Plaintiff contends that generally, the requests to extend discovery were 

sought to permit Plaintiff to locate and serve a defendant, collect medical 

records, consult with experts, take depositions, and other similar tasks that 

normally cause delay during the discovery period. Plaintiff directs our 

attention to Kuchak v. Lancaster, 547 A.2d 372, 375 (Pa.Super. 1988), a 

medical malpractice action wherein this Court found that, in calculating delay 
J-A20005-20 & J-A20006-20

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damages, the plaintiff was not responsible for a forty-eight-month delay 

between the filing of the complaint and the verdict in favor of the plaintiff, 

despite all requests for continuances being made by the plaintiff. In Kuchak, 

plaintiff sought discovery extensions in order to depose each medical provider 

and seek expert review of providers’ actions. In addition, there were delays 

due to the unavailability of medical providers and attorney scheduling 

conflicts. According to Plaintiff, this Court characterized such delays in 

Kuchak as “normal,” “always present,” and “naturally affect[ing] the length 

of discovery.” Id. at 375. Further, this Court refused “to categorically impute 

natural delays in discovery to plaintiffs unless it is demonstrated that the 

plaintiff failed to take reasonable and normal steps to prepare his case and 

proceed to trial.” Id. Plaintiff contends that, as in Kuchak, she prepared her 

case “expeditiously” and the continuances were not due to her failure to 

proceed diligently, but attributable to normal events in the course of 

discovery. 

MVCHS maintains that the trial court properly determined that delay 

damages commenced on April 1, 2015, but then concluded that she was not 

entitled to delay damages at that time since she caused “significant delay.” 

MVCHS’s brief at 23. Additionally, MVCHS points out that the trial court did 

not exclude from the calculation of delay damages an additional fifty-four days 

of delay caused by Plaintiff in 2017. Id. at 24.
J-A20005-20 & J-A20006-20

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At issue is whether the delay occasioned by discovery extensions at 

Plaintiff’s request delayed the trial of this case. In Tindall, we held that the 

trial court misinterpreted Rule 238 when it imposed delay damages for the 

period when trial was postponed due to a continuance requested by plaintiff’s 

counsel and the defendants were ready to proceed. We held therein that the 

delay in trial was not the result of any action by the defendants or the court 

system, and that the plaintiff was not entitled to delay damages for that 

period. See also Wirth v. Miller, 580 A.2d 1154, 1156 (Pa.Super. 1990) 

(reversing the award of delay damages for the period from March 22, 1989 

when trial was originally scheduled to commence, and May 10, 1989, when 

trial was rescheduled, because the delay of trial was at plaintiff’s request). 

The situation here does not involve the continuance of the trial per se. 

Rather, it involves extensions of the time for discovery that are commonplace 

and expected during the preparation of complex litigation. As the explanatory 

note to Rule 238 states, “not every procedural delay is relevant to the issue 

of delay damages, but only such occurrences as actually cause delay of the 

trial.” Pa.R.C.P. 238 Explanatory Comment. 

In Kuchak, we refused “to categorically impute natural delays in 

discovery to plaintiffs unless it is demonstrated that the plaintiff failed to take 

reasonable and normal steps to prepare his case and proceed to trial.” 

Kuchak, supra at 293. In that case, the trial court “specifically found that 

[plaintiff] had expeditiously prepared his case,” continuances were necessary 
J-A20005-20 & J-A20006-20

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as discovery was incomplete, and that the non-completion of discovery did 

not result from plaintiff’s “failure to proceed diligently.” Id. 

In the case sub judice, the trial court made no finding that Plaintiff 

required discovery extensions because she had not proceeded diligently. 

Rather, the trial court’s holding suggests that the discovery continuances 

count against Plaintiff simply because she requested them. In accord with 

Kuchak, supra, we decline to endorse the trial court’s position that every 

extension of discovery sought by a plaintiff in a complicated medical 

malpractice case ipso facto constitutes a delay of trial merely because a trial 

date is not set until discovery is closed. There are valid reasons why discovery 

may need to be extended, especially in complex cases with multiple 

defendants and attorneys. 

We note that MVCHS was served in this case on April 1, 2014. It filed 

its answer and new matter on July 17, 2014. Two weeks later, on August 1, 

2014, a pre-trial deficiency order issued because Plaintiff failed to file a pretrial 

statement. To avoid the imposition of sanctions, Plaintiff sought the first 

extension of discovery on August 27, 2014. In our view, Plaintiff had virtually 

no opportunity to engage in discovery with MVCHS. Furthermore, MVCHS did 

not allege, nor did the trial court find, that during this short interval Plaintiff 

failed to take reasonable and normal steps to prepare her case or was not 

diligent in moving the case to trial. 
J-A20005-20 & J-A20006-20

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For these reasons, we vacate the award of delay damages. In recalculating delay damages following the limited new trial, we direct the trial 

court to determine whether, during the periods Plaintiff sought and obtained 

discovery extensions, Plaintiff displayed a lack of diligence that delayed the 

trial of this case, and assess delay damages accordingly. 

Judgment affirmed in part and vacated in part. Orders vacated denying 

post-trial motion for limited new trial and assessing delay damages. Case 

remanded for a limited new trial as to future medical expenses and 

reassessment of delay damages. Jurisdiction relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/19/2021