Grandelli v. Methodist Hosp.

• Decision Date: 21 May 2001
• Citation: 777 A.2d 1138
• Parties: Maria Elena GRANDELLI, Appellant v. METHODIST HOSPITAL, Partners in Women's Health, Jack Jenofsky, M.D., Joseph Talvacchia, D.O., Appellees.
• Court: Pennsylvania Superior Court

777 A.2d 1138

Maria Elena GRANDELLI, Appellant v. METHODIST HOSPITAL, Partners in Women's Health, Jack Jenofsky, M.D., Joseph Talvacchia, D.O., Appellees.

Superior Court of Pennsylvania.

Submitted January 29, 2001.

Filed May 21, 2001.

Dean J. Buono, Marlton, NJ, for appellant.

David M. Schwadron, Philadelphia, for Doe, Jenofsky, Talvacchia and Partners in Women's Health, appellees.

Donald N. Camhi, Philadelphia, for Methodist Hosp., appellee.

Before: JOHNSON, HUDOCK, and KELLY, JJ.

KELLY, J.

¶ 1 Appellant, Maria Elena Grandelli, asks us to review the orders of the Philadelphia County Court of Common Pleas, which granted summary judgment in favor of Appellees, Methodist Hospital, Partners in Women's Health, Jack Jenofsky, M.D., and Joseph Talvacchia, D.O.; and dismissed Appellant's medical malpractice case with prejudice. Appellant also challenges another order of the same court, which denied her Petition for Extraordinary Relief from the deadlines set forth in the Case Management Order of the Philadelphia County case management program. We hold that the trial court properly granted summary judgment in favor of Appellees due to a substantive deficiency of proof in Appellant's cause of action. Accordingly, we affirm.

¶ 2 The trial court opinion sets forth the relevant facts and procedural history of this case as follows:

This medical malpractice case commenced on November 12, 1997 with the filing of a Praecipe to Issue a Writ of Summons. The Complaint was filed on December 3, 1997.¹ This case proceeded in accordance with the Case Management Order of June 29, 1998 until this Court heard argument on and granted Appellees' Motions for Summary Judgment. The grant of those motions disposed of the case in its entirety.

Appellant is currently represented by Attorney Dean Buono of Parker, McCay & Criscuolo, P.A. Although a Petition for Extraordinary Relief, as well as replies to the instant motions were filed by Attorney Buono, to date, Counsel has not entered his appearance in this case. Attorney, Joseph Marrone, Jr. is the attorney of record. Attorney Buono has represented to this Court that he was formerly employed by the law offices of Joseph Marrone, Jr. until some point within the first quarter of 1999. While employed with the Marrone Law Firm, Attorney Buono handled this case until it was transferred to another of his colleagues at the firm in the latter part of 1998. After the transfer was made, Attorney Buono had no further contact with the Appellant or her case until she contacted him on September 16, 1999 [at the law firm with which he is currently associated].²

According to the certification of Attorney Buono, dated October 27, 1999, Appellant contacted him in September to request that he assume responsibility for her case. Appellant complained that she had no contact with the Marrone Law Firm since Attorney Buono left the firm. Attorney Buono's certification indicates that the Marrone Law Firm and an "individual attorney by the name of `Gamberg'" were handling the Appellant's case. It is unclear what relationship Attorney Gamberg had with the Marrone Law Firm. At that time, Appellant informed Attorney Buono that her phone calls, letters and visits to the Marrone Law Firm had gone unanswered. At Appellant's request, Attorney Buono contacted Attorney Gamberg and learned that no action had been taken by him on behalf of Appellant. At this point, Attorney Buono agreed to assume responsibility for the case and instructed the Appellant to retrieve her file from Attorney Marrone.4 The file was provided to Attorney Buono on September 17, 1999.

4 Appellant was turned away from the office of Attorney Marrone and instructed to contact Attorney Gamberg, who supplied her with the file on or about September 17, 1999.

Attorney Buono represents that after obtaining the file, he received a facsimile from Attorney Gamberg on September 17, 1999, advising him of an Order of this Court³ which had been issued on September 8, 1999.⁴ Attorney Buono claims that he immediately contacted Attorney Marc Schwadron, Appellees' counsel, to arrange for the deposition and that he received assurance from Attorney Schwadron that no further action would be taken on the September 8th Order.⁵ On October 5, 1999, Attorney Buono provided Attorney Schwadron with available dates for deposition in October and November, 1999, and asked for a reply by October 12, 1999. The Motions for Summary Judgment were filed October 12, 1999.

5 On September 8, 1999, this Court issued an Order based upon a discovery motion, requiring the Appellant to present herself for an oral deposition, answer supplemental interrogatories and supplemental responses to supplemental requests for the production of documents. The Order, the existence of which was docketed on September 8, 1999, stated further that should [Appellant] not comply, "[Appellant] shall be precluded from presenting evidence/testimony on her behalf at trial" upon motion of the [Appellees]....

6 In support of this contention, Attorney Buono presented a letter from Attorney Schwadron dated September 15, 1999, faxed September 17, 1999. The letter stated, inter alia, "Pursuant to the terms of [the September 8th Order], [Appellant] is to present herself for deposition by September 18, 1999. Failure to do so will result in her preclusion at trial. To that regard, please contact me no later than September 18, 1999 with dates for the deposition of your client." (Emphasis added.) Further, in support of this contention, Attorney Buono presented a letter from Attorney Schwadron dated September 27, 1999 in which Attorney Schwadron provided two available dates in September for the deposition, requested available dates from Attorney Buono and indicated that because Attorney Buono contacted him prior to September 18, 1999 he would hold the Motion for Summary Judgment in abeyance for an unspecified period of time pending confirmation of [Appellant's] deposition.

The Motions for Summary Judgment were based ... on the Appellant's failure... to obtain and present an expert report and/or curriculum vitae, in accordance with the Case Management Order of June 29, 1998.⁴ It is upon receipt of the Motion for Summary Judgment on or about October 12, 1999 that Attorney Dean Buono acknowledges the deadlines contained in the Case Management Order.

When responding to the Motion for Summary Judgment, Appellant simultaneously filed a Petition for Extraordinary Relief requesting a six-month extension of the Court deadlines. Appellant's Petition for Extraordinary Relief was denied as Moot when this Court simultaneously granted the Appellees' Motions for Summary Judgment. This Appeal followed.

(Trial Court Opinion, dated August 31, 2000, at 1-4).

¶ 3 To this rendition we add that Appellees' motion to compel Appellant's deposition also included a motion to compel Appellant's responses to supplementary discovery served on Appellant's counsel months earlier. The court's order of September 8, 1999 compelled Appellant to present herself for deposition and to provide responses to the supplemental discovery within ten days of the date of the order or September 18, 1999. By the date of the court's enforcement order of September 8th, the deadline for discovery of September 7th had already passed. (See Case Management Order, supra n. 5.) When Appellees filed their dispositive motions on October 12, 1999, Appellant still had not presented herself for deposition or supplied responses to the supplemental discovery in compliance with the court's September 8th order, nor had she produced an expert report.

¶ 4 Appellee Methodist Hospital filed its motion for summary judgment on October 12, 1999, on the ground that Appellant had failed to submit an expert report by the October 4, 1999 deadline. In her motion in opposition, Appellant argued only that her case was one involving res ipsa loquitur and, therefore, no expert report was necessary.

¶ 5 Appellees Partners in Women's Health, Jack Janofsky, M.D., and Joseph Talvacchia, D.O. filed their motion for summary judgment on October 12, 1999, also on the ground that Appellant had not produced an expert report to establish any causal connection between the alleged negligent acts of Appellees and the alleged resultant harm to Appellant. In her motion in opposition, Appellant again argued only that her case was one involving res ipsa loquitur and, therefore, no expert report was necessary.

¶ 6 On October 29, 1999, Appellant filed a separate Petition for Extraordinary Relief from the established discovery and pre-trial deadlines and asked to extend those deadlines by six months, during which time counsel promised he would present Appellant for oral deposition and provide an expert report. Counsel also urged the court to forgive Appellant's discovery failures. This petition was filed after the expiration of both the discovery deadline of September 7, 1999 and the expert witness deadline of October 4, 1999.⁵ Appellees unanimously opposed Appellant's Petition for Extraordinary Relief on the grounds that Appellant had been dilatory in responding to Appellees' supplemental discovery requests, had failed to present herself for deposition, had failed to obtain an expert report in a timely manner, and had failed to file her Petition in a timely manner. ¶ 7 Appellees Partners in Women's Health, Jack Janofsky, M.D., and Joseph Talvacchia, D.O. also filed a motion in limine to preclude Appellant from presenting any evidence or testimony on her behalf at the time of trial, on the basis of Appellant's failure to comply with the court's discovery order of September 8th.

¶ 8 On January 28, 2000, the trial court filed four orders (dated January 20, 2000). The court's first order denied as moot Appellees' motion to preclude. The court's second order denied as moot Appellant's Petition for Extraordinary Relief. The court's third order granted summary judgment in favor of Appellees Partners in Women's...