J. A14007/08 2008 PA Super 165 ROBIN M.…

J. A14007/08
                             2008 PA Super 165

ROBIN M. WYTIAZ AND KEITH WYTIAZ,      :           IN THE SUPERIOR COURT OF
HER HUSBAND,                           :                 PENNSYLVANIA
                                       :
                Appellants             :
                                       :
           v.                          :
                                       :
DAVID J. DEITRICK, D.O., MERCY PRIMARY :
CARE, INC., KHALILI NOORBAKHSH AND     :
DEITRICK METROPOLITAN OBSTETRIC        :
GYNECOLOGY ASSOCIATES, INC.,           :
                                       :
                Appellees              :               No. 1219 WDA 2007

               Appeal from the Judgment entered June 12, 2007
              in the Court of Common Pleas of Allegheny County,
                       Civil Division, at No. GD06-2688.

BEFORE: ORIE MELVIN, BENDER and ALLEN, JJ.

OPINION BY ORIE MELVIN, J.:                          Filed: July 25, 2008

¶1    Appellants, Robin and Keith Wytiaz, appeal from the judgment entered

following a jury verdict in favor of the defense in this medical malpractice

action.   Appellants claim that the verdict was against the weight of the

evidence and that they were denied a fair trial.    After careful review, we

affirm.

¶2    The trial court succinctly set forth the relevant factual background in

this matter as follows.

          Plaintiffs instituted the within action by the filing of a
          complaint in February 2006 alleging medical negligence on
          the part of the Defendants. Mrs. Wytiaz averred that her
          relevant course of treatment began in approximately
          January 2002, when she had a baseline screening
          mammogram with normal results. Thereafter, she was seen
          by the Defendant, Dr. David J. Deitrick, beginning with an
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        annual examination on January 17, 2003, and on a number
        of occasions up through and including visits in 2004 and
        2005, during the last of which she was diagnosed with
        breast cancer. Plaintiffs alleged that Dr. Deitrick had been
        negligent in failing to properly examine and care for her as
        early as January 2003 based upon her complaints, but most
        certainly by August 11, 2003, when she was making
        complaints consistent with a thickening under her right
        breast. Further, [they alleged] that he continued for some
        time to fail to conduct proper examinations, order
        appropriate testing, and reach a timely diagnosis, and that
        as a result Mrs. Wytiaz was required to undergo significant
        surgery, chemotherapy treatment, radiation therapy, and
        herceptin therapy.

        At trial, each of the parties presented three expert
        witnesses from the related disciplines in the diagnosis and
        care of individuals with breast cancer.

Trial Court Opinion, 9/27/07 (Scanlon, J.),1 at 2-3.

¶3    The case proceeded to a jury trial in January 2007, at the conclusion of

which the jury found in favor of the defense. Specifically, the jury answered

the first interrogatory as follows:

        QUESTION 1:

        Do you find that the conduct of the defendant, fell below

        applicable standard of medical care?     In other words, was

        David J. Deitrick, D.O. negligent?

               Yes ________ No ____ ____




1
 A second trial court opinion authored by a different judge was also filed on
September 27, 2007.

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Certified Record (C.R.) at 46. Appellants filed post-trial motions which the

trial court denied, and this timely appeal followed.    Appellants present the

following two issues for our review:

        I. Whether a new trial was required due to the jury's
        verdict being against the weight of the evidence, as all
        competent evidence showed that Robin Wytiaz reported a
        palpable abnormality to Defendant Deitrick on August 11,
        2005 [sic], which he failed to treat in violation of the
        governing standard of care?

        II. Whether a new trial was required because the court's
        denial of Plaintiffs' proposed voir dire questions resulted in a
        bias-tainted jury, which precluded Plaintiffs from receiving a
        fair trial[?]

Appellants' brief at 4.2 We address these claims in the order presented.

¶4    We begin with our well-settled standard of review of claims relating to

the weight of the evidence.

        Our review of challenges to the weight of the evidence is
        extremely limited. We will respect the trial court's findings
        with regard to credibility and weight of the evidence unless
        it can be shown that the lower court's determination was
        manifestly erroneous, arbitrary and capricious, or flagrantly
        contrary to the evidence. Additionally, this Court's review of
        a weight of the evidence claim is a review of the trial court's
        exercise of discretion in weighing the evidence, not of the
        underlying question of whether we believe that the verdict
        is, in fact, against the weight of the evidence.

In re Mampe, 932 A.2d 954, 960 (Pa. Super. 2007) (citations omitted),

appeal denied, ___ Pa. ___, 944 A.2d 758 (2008).



2
  Appellants complied with the trial court's direction to file a Rule 1925(b)
statement, and the trial court provided two separate Rule 1925(a) opinions
to support the rulings challenged on appeal.


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¶5    Appellants contend on appeal, as they did before the trial court, that

all of the credible evidence presented at trial establish that Dr. Deitrick

breached the standard of care in caring for Appellant/Wife.      Following our

careful review, we find Appellants' claim oversimplifies the testimony and is

belied by the record. Furthermore, we agree with the following reasoning of

the trial court in denying Appellants' motion for a new trial:

        [Appellants'] counsel suggests there was no conflict among
        the experts with regard to the existence of a palpable
        abnormality in Mrs. Wytiaz's right breast in August 2003 or
        June 2004. There is testimony from all three defense
        experts to the contrary. Dr. Schwarz, the breast surgeon,
        testified in part regarding his belief that there was no
        palpable abnormality at any of the relevant times bearing
        on the issue of the failure to timely diagnose. Further, the
        questions involving indications for further diagnostic study
        such as a diagnostic rather than routine mammogram, or
        for a sonogram and compliance with the standard of care in
        that regard, were addressed by both Dr. Schwartz and Dr.
        Bolognese, the [defense] OB/Gyn expert.         In addition,
        [defense] testimony from Dr. Aben, the radiologist,
        supported the judgment of Dr. Deitrick retrospectively, by
        establishing the lack of a radiologic indication for a
        diagnostic mammogram or ultrasound during any of the
        visits where Mrs. Wytiaz was seen by Defendant-physician
        David Deitrick.
                                   ****
        The issue is really whether after due consideration of all of
        the evidence presented, including close to 600 pages of
        testimony from six different expert witnesses spread out
        over seven hours before this jury, that its decision could
        reasonably have been reached. * * * * Careful and
        thorough review of the record of testimony in this case
        leads one only to a conclusion that there was an undeniable
        conflict in the testimony presented by the six expert
        witnesses. Such conflict could only have been resolved by
        the jury.




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Trial Court Opinion, 9/27/07 (Scanlon, J.), at 4-5 (citations to record

omitted). We discern no abuse of the trial court's discretion in denying the

motion for a new trial on this basis.

¶6    Appellants' other argument is that the trial court abused its discretion

when it refused their request to ask the potential jurors several particular

voir dire questions and that they were thereby denied a fair trial.            In

addressing this contention, we observe that, "[t]he purpose of the voir dire

examination is to secure a competent, fair, impartial and unprejudiced jury."

Mansour v. Linganni, 787 A.2d 443, 448 (Pa. Super. 2001) (citation

omitted), appeal denied, 568 Pa. 702, 796 A.2d 984 (2002). The Rules of

Civil Procedure provide for voir dire to permit the parties to obtain pertinent

information about potential jurors including any "[r]easons the prospective

juror believes he or she cannot or should not serve as a juror" and "[s]uch

other pertinent information as may be appropriate to the particular case to

achieve a competent, fair and impartial jury."        Pa.R.C.P. 220.1(a)(14) and

(16), 42 Pa.C.S.A. Furthermore, "[t]o achieve this goal the trial judge has

broad discretion in determining the scope, manner and procedure of the voir

dire examination, and his decisions will not be reversed in the absence of

palpable error." Mansour, supra, at 448.

¶7    Relying   principally   upon   Capoferri   v.    Children's   Hospital   of

Philadelphia, 893 A.2d 133 (Pa. Super. 2006), appeal denied, 591 Pa. 659,

916 A.2d 630 (2006), Appellants claim they should have been permitted "to



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question potential jurors on their attitudes toward medical malpractice."

Appellant's brief at 26.   The questions which Appellants sought to ask the

venire are as follows.

        1. Some people have a belief that doctors should not be
        held liable for medical mistakes or malpractice. There is
        nothing wrong with this belief, but we need you to tell us if
        you have such a belief.

        2. Some of you may have heard or read about medical
        malpractice lawsuits in the media. Have you heard anything
        that has caused you to form any opinions about such
        lawsuits?

        3. If a doctor makes a medical error and a patient suffers
        harm because of it, do you have any beliefs that would
        prevent you from awarding compensation to such a patient?

See C.R. at 48; Trial Court Opinion, 9/27/07 (Strassburger, J.), at 3-4.

¶8    In Capoferri, the plaintiffs filed a medical malpractice suit alleging the

defendants were negligent in caring for their young son.          The plaintiffs

sought to ask the following questions of the potential jurors about "media

coverage of `the alleged medical malpractice crisis in and the alleged flight of

physicians from Philadelphia,'" id. at 135:

        27) Have you seen or heard advertisements which criticize
        persons who use the judicial system as a method of
        recovering money for personal injuries or damages caused
        by another person? If so, what have you seen or heard?

        28) Does anything concern you about personal injury
        lawsuits generally or medical malpractice cases in particular
        in which an injured person seeks money damages? If so,
        what is your concern? Please explain.

        29) Do any of you have any prejudice against a person who
        files a lawsuit seeking money damages for personal injuries


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        based upon anything you or anyone in your family or
        household has seen or heard, or based upon any personal
        feelings or thoughts you may have?

        30) Do any of you have any preconceived prejudice against
        individuals who file a lawsuit claiming injuries as a result of
        the medical malpractice of hospitals and/or physicians,
        because of recent publicity, advertising or newspaper
        stories that you have read or heard regarding the "so-
        called" medical malpractice crisis in the Philadelphia
        community? If so, please explain.

Id. The trial court denied the request, and the matter proceeded to a jury

trial with a verdict in favor of the defense. On appeal, we concluded that the

trial court abused its discretion, reasoning that, because of the "massive

amount of media coverage" on medical malpractice and tort reform, the

parties should have been permitted to question the prospective jurors on

their views of those subjects to ascertain their impartiality. Id. at 142. This

Court did not, however, endorse the above questions, and instead suggested

that the trial court ask appropriate preliminary questions to discover

"whether any of the prospective jurors had been exposed to tort reform and

medical negligence propaganda." Id. at 143 (quoting Barrett v. Peterson,

868 P.2d 96, 102 (Utah Ct. App. 1993)). Potential jurors who had been so

exposed could then be questioned further for bias.       Id.    Accordingly, we

reversed and remanded for a new trial.

¶9    In the case at bar, we note at the outset that the certified record does

not contain a transcript of the voir dire proceedings, nor is there an order

denying Appellants' proposed questions for the venire.         Nonetheless, this



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claim was presented in Appellants' motion for post-trial relief and addressed

by the trial court in a Rule 1925(a) opinion.3    Specifically, the trial court

explained that it "denied all three questions because they were covered by

the Allegheny County standard voir dire questions."        Trial Court Opinion,

9/27/07 (Strassburger, J.), at 4. Those standard questions are as follows.

        21) Based on anything you may have heard or read, do you
        have a belief or opinion about civil damage lawsuit?

            a) If so, what is that opinion or belief?

           b) Will that influence your judgment in this case so that
        you may not be able to be fair and impartial?

        22) This case involves a claim for money damages and is
        the type commonly called a      (products liability; medical
        malpractice; auto accident; breach of contract; etc.)
        lawsuit.

            a) Do you have an opinion or a belief for or against this
            type of case, the people who file this type of case, or the
            persons who are sued in this type of case?

            b) If so, what is that opinion or belief?

        23) Will that influence your judgment in this case so that
        you may not be able to be fair and impartial?



3
   The record also reflects that Appellants included, as exhibits and an
appendix to their post-trial motion, a sizeable number of articles retrieved
from various internet websites which purportedly supported their claim
relating to the proposed voir dire. The trial court granted the motion of the
defense to strike those exhibits and appendix. Additionally, the trial court
noted that, "[a]t the time Plaintiffs in this case proposed the additional voir
dire questions, they did not make any reference to specific or pervasive
media coverage of the medical malpractice crisis near the time of this trial in
Pittsburgh, Allegheny County, or Pennsylvania."          Trial Court Opinion,
9/27/07 (Strassburger, J.), at 6 n.3.


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         24) Is there any reason why you feel you cannot serve as a
         fair and impartial juror in this case?

Id. at 5-6; Allegheny Cty. L.R. 220.1.

¶ 10 In their brief on appeal, Appellants baldly assert that there was a

"significant   media   campaign   against   medical   malpractice   lawsuits   in

Allegheny County" and that "the jury in the present case was prejudicially

tainted against" them.     Appellant's brief at 27.    They suggest that the

standard questions are sufficient to "begin the screening process" but were

not adequate to fully explore potential bias.         Appellant's brief at 31

(emphasis in original).

¶ 11 We disagree. Unlike the plaintiffs in Capoferri, the potential jurors in

this case were asked specific questions which were designed to uncover

potential bias or impartiality, including whether they had been exposed to

and affected by media influences and whether they had any specific beliefs

about medical malpractice lawsuits or the parties involved in such litigation.

Simply because the trial court refused to use the particular wording of the

proposed questions offered by Appellants does not mean that they were

precluded from conducting the appropriate inquiry into the potential jurors'

"attitudes toward medical malpractice." Appellant's brief at 26. Appellants

also do not assert that they were prevented from questioning further any

potential juror who answered one or more of the standard voir dire

questions in a manner which might prompt additional inquiry. Simply put,




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we are unable to conclude that the trial court abused its discretion.

Accordingly, this claim fails.

¶ 12 Judgment affirmed.




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