Folger v. Dugan, 2005 PA Super 197 (PA 5/26/2005)

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2005 PA Super 197

JOSEPH ROBERT FOLGER, A MINOR, BY HIS P/N/G, ROBERT J. FOLGER AND MARY T. FOLGER, AND ROBERT J. FOLGER AND MARY T. FOLGER, IN THEIR OWN RIGHT, Appellants v. THERESA DUGAN, M.D., FRANKFORD HOSPITAL, SONDRA DANTZIC, M.D., THE MEDICAL COLLEGE OF PENNSYLVANIA, EUGENE ANDRUCZYK, D.O., MARILYN WETTLAUFER, M.D., WETTLAUFER, ANDRUCZYK AND DUGAN, Appellees.

No. 3774 EDA 2002.

Superior Court of Pennsylvania.

Filed: May 26, 2005.

Appeal from the Order dated November 15, 2002, in the Court of Common Pleas of Philadelphia County, Civil Division, at No(s). 1010 July Term, 1996.

Before: DEL SOLE, P.J., HUDOCK, FORD ELLIOTT, JOYCE, STEVENS, LALLY-GREEN, TODD, KLEIN, and BOWES, JJ.

Opinion by LALLY-GREEN, J.:

¶ 1 Appellants, Joseph Robert Folger, Robert J. Folger and Mary T. Folger, appeal from the trial court's November 15, 2002 order denying their post-trial motions.¹ We affirm.

¶ 2 The trial court summarized the facts and procedural history as follows:

This is a medical malpractice action brought by Plaintiff-minor Joseph Folger and his parents Robert and Mary Folger (hereinafter "Plaintiffs") against Theresa Dugan, M.D., Eugene Andruczyk, D.O., Marilyn Wettlaufer, M.D., Sondra Dantzic, M.D. and Frankford Hospital (hereinafter "Defendants"). On July 13, 1994, Plaintiff-minor was born at Defendant Frankford Hospital. Dr. Dugan was the obgyn attending at the birth and performed post-natal examinations. The testimony revealed that the infant had no significant problems at birth, had normal APGAR scores, had normal blood gasses and feedings were normal. Mother and baby were thereafter discharged on July 14, 1994.

Six days later, Plaintiff-minor developed a fever and was admitted to St. Christopher's Hospital for Children. While there, he was diagnosed with herpes encephalitis. The diagnosis was made in part on the basis of the results of a polymerase chain reaction test ("PCR test") performed on Plaintiff-minor's spinal fluid at the University of Alabama. The diagnosis was recorded into his medical chart and taken into consideration by his doctors, who determined the cause of his illness and recommended treatment accordingly.

Plaintiff sought to prove that the cause of Joseph's infirmities was negligence during the delivery which resulted in neurological defects. Plaintiff produced testimony that Plaintiff-minor was born as a face presentation, as opposed to a normal vertex presentation, causing traumatic birth injuries. Defendants countered that Plaintiff-minor was born as a normal vertex presentation and that his present condition is not a result of any negligence on the part of the Defendants. It is uncontested that Plaintiff-minor now suffers severe and permanent neurological injuries.

Trial commenced on June 7, 2002 and the jury returned a verdict in favor of [Defendants] on June 21, 2002.

Trial Court Opinion, 4/8/03, at 1-2.

¶ 3 Appellants filed post-trial motions, which the trial court denied. This appeal followed.

¶ 4 Appellants raise the following issues for our review:

(1) Whether, when the evidence clearly compelled a finding that Dr. Dugan was negligent, and the defense verdict can only have resulted from the manifestly unreasonable determination that Joseph Folger's mother knowingly imperiled her baby's life by lying to the doctors who were trying to diagnose and save him, and/or from improper consideration of evidence as to the etiology of Joseph's injuries which was patently inadmissible, that verdict shocks the conscience, making a new trial necessary.

(2) Whether it was reversible error to admit the "evidence" upon which defendants' entire exculpatory theory rested, the alleged result of alleged polymerase chain reaction ("PCR") testing, which was facially incompetent, unauthenticated, could not be challenged by cross-examination, and constituted inadmissible hearsay.

(3) Whether the admission of this evidence also was reversible error, as it should have been precluded (or at least subjected to prior scrutiny by the trial court, in its role as gatekeeper) under Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) and its Pennsylvania progeny.

(4) Whether it was reversible error to permit the defense to improperly use and introduce, as expert testimony, the discovery depositions of plaintiff's treating physicians, and the inadmissible opinions regarding the alleged PCR test result contained therein.

Appellants' Substituted Brief on Reargument at 2.²

¶ 5 Appellants first argue that a new trial is necessary because the jury returned a verdict that is contrary to the weight of the evidence.

The general rule for a grant of a new trial on the basis that it is against the weight of the evidence allows the granting of a new trial only when the jury's verdict is contrary to the evidence as to shock one's sense of justice and a new trial is necessary to rectify this situation. Unlike appellate review of a refusal to enter a judgment N.O.V., where the evidence and all reasonable inferences therefrom are viewed in the light most favorable to the verdict winner, the appellate court, in reviewing the refusal to grant a new trial, ordinarily considers all of the evidence. The court is not required to consider the evidence in the light most favorable to the verdict winner when passing on the question of whether a verdict is against the weight of the evidence. Rather, the court is to view all of the evidence.

Moreover, a new trial will not be granted on the ground that the verdict was against the weight of the evidence where the evidence is conflicting and the fact-finder could have decided in favor of either party.

Lanning v. West, 803 A.2d 753, 765-766 (Pa. Super. 2002).

¶ 6 Appellants' argument is based largely on the testimony of Appellant Mary Folger. Mrs. Folger testified that, during the delivery of Joseph at Frankford Hospital, Appellee Theresa Dugan, M.D., manually rotated Joseph from a face presentation, which is abnormal, to a vertex presentation, which is normal. N.T., 6/13/02 p.m., at 45. Mrs. Folger claims that Dr. Dugan explained to her that she manually rotated Joseph during delivery. Id. Dr. Dugan denies having manually rotated Joseph from a face to a vertex presentation or having told Mrs. Folger that she had done so. N.T., 6/17/02 at 118-119. Dr. Dugan testified that she is not familiar with any such procedure and does not believe it is possible. Id.

¶ 7 The record also reflects that when Mrs. Folger brought Joseph to St. Christopher's hospital on account of his fever, she told the treating physicians that the baby had been manually rotated during delivery. N.T., 6/13/02, p.m., at 55-56. Appellants claim that Mrs. Folger, as a nurse herself, was aware that the information she provided to the treating physicians was critical to proper diagnosis and treatment of Joseph's condition. Appellants argue that the jury's failure to credit Mrs. Folger's testimony shocks the conscience, since no mother would lie in circumstances where her child's health depends upon accurate information.

¶ 8 Appellees point out that the hospital's records indicate that Joseph's birth was a normal vertex presentation. Thus, these records support Dr. Dugan's testimony. Appellees argue that Mrs. Folger's testimony is based on a simple misunderstanding of what Mrs. Folger was told regarding Joseph's delivery.

¶ 9 The trial court found that the record contains conflicting evidence as to whether Joseph's injuries were the result of negligence. Trial Court Opinion, 4/8/03, at 4. Our own review of the record confirms the trial court's finding, as there is evidence in the record that conflicts with Mrs. Folger's version of events. Appellees produced a substantial amount of evidence indicating that Joseph's delivery was a normal vertex presentation and that there were no major problems with the delivery. N.T., 6/13/02, p.m., at 80; N.T., 6/17/02, at 88-89, 110-111, 118-119; N.T., 6/18/02, at 84; N.T., 6/20/02, at 19-33. Accordingly, the jury was free to credit Appellees' version of events and to conclude that Mrs. Folger was mistaken. Lanning. The record reflects that the jury's verdict was not so contrary to the weight of the evidence as to shock one's sense of justice. Thus, the trial court did not abuse its discretion in denying a new trial on that basis. Appellants' first argument fails. We note that Appellants' failure to carry their burden of proving negligence at Frankford Hospital is, in and of itself, sufficient reason not to disturb the jury verdict.

¶ 10 Appellants next argue that a new trial is necessary because the trial court erred in admitting PCR test results as evidence.

This Court will not reverse a trial court's decision regarding the grant or refusal of a new trial absent an abuse of discretion or error of law. . . . Further, if the basis of the request is the trial court's rulings on evidence, then such rulings must be shown to have been not only erroneous but also harmful to the complaining party. Evidentiary rulings which did not affect the verdict will not provide a basis for disturbing the jury's judgment.

Antoniotti v. Eckels, 840 A.2d 1013, 1015-1016 (Pa. Super. 2003). In making this determination, we must consider whether a new trial would produce a different verdict. Gunn v. Grossman, 748 A.2d 1235, 1239 (Pa. Super. 2000). If there is any support in the record for the trial court's denial of a new trial, we must affirm the trial court's order. Id. ¶ 11 Appellants contend that the hospital records containing the PCR test results should not have been admitted for two reasons. Appellants claim the PCR test results were not properly authenticated under Pa.R.E. 901. Appellants also argue that the PCR test results were a matter of opinion rather than fact, and that the records were unreliable. Appellants conclude, therefore, that the PCR test results were not admissible under Pa.R.E. 803(6).

¶ 12 We first address Appellants' argument that Appellees failed to...