Kimble v. Laser Spine Inst., LLC
| Decision Date | 30 September 2021 |
| Docket Number | No. 618 EDA 2019,No. 617 EDA 2019,617 EDA 2019 |
| Citation | 264 A.3d 782 |
| Parties | Robert KIMBLE, Administrator and Personal Representative of the Estate of Sharon Kimble and Robert Kimble in His Own Right v. LASER SPINE INSTITUTE, LLC, Laser Spine Institute Philadelphia, Laser Spine Institute of Pennsylvania, LLC, Glenn Rubenstein, M.D., Appeal of: Laser Spine Institute, LLC, Robert Kimble, Administrator and Personal Representative of the Estate of Sharon Kimble and Robert Kimble in His Own Right v. Laser Spine Institute, LLC, Laser Spine Institute Philadelphia, Laser Spine Institute of Pennsylvania, LLC, Glenn Rubenstein, M.D., Appeal of: Glenn Rubenstein, M.D. |
| Court | Pennsylvania Superior Court |
Maureen M. McBride, West Chester, for appellant.
Kevin H. Wright, Lansdale, for appellant.
Joseph A. DelSole, Pittsburgh, for appellant.
James C. Sargent, Jr., West Chester, for appellant.
David A. Yanoff, Philadelphia, for appellee.
John J. Hare, Philadelphia, for appellee.
Lane R. Yanoff, Jr., Philadelphia, for appellee.
Martin S. Kardon, Philadelphia, for appellee.
BEFORE: PANELLA, P.J., BENDER, P.J.E., LAZARUS, J., STABILE, J., DUBOW, J., NICHOLS, J., MURRAY, J., McLAUGHLIN, J., and KING, J.
OPINION BY McLAUGHLIN, J.:
Laser Spine Institute, LLC, Laser Spine Institute Philadelphia, Laser Spine Institute of Pennsylvania, LCC (collectively, "the LSI Defendants") and Glenn Rubenstein, M.D. (together with LSI, "Appellants") appeal from the judgment entered in favor of Robert Kimble in his own right and as administrator and personal representative of the estate of Sharon Kimble. The LSI Defendants contend that the judgment against them is void because the verdict slip used the collective name "Laser Spine Institute," whereas the judgment is against each individual LSI defendant. Appellants also challenge the trial court's denial of their motions for judgment notwithstanding the verdict ("JNOV"), a new trial, or remittitur. We affirm.
Robert and Sharon Kimble married in 2003, divorced in 2012, and remarried later that same year. (As necessary for clarity, we will refer to Robert and Sharon by their first names
. "Kimble" standing alone will refer to Robert Kimble.) Sharon suffered from debilitating back pain for which she took numerous pain medications. Although she and her husband lived in Ohio, she sought treatment from the LSI Defendants in Wayne, Pennsylvania, and on January 29, 2014, she underwent outpatient spine surgery at their facility. Dr. Rubenstein was the anesthesiologist. The surgery began at 7:20 A.M. and ended approximately an hour and 20 minutes later, at approximately 8:40 A.M. Sharon was discharged two hours afterward, at 10:40 A.M. She and her husband then returned to a nearby hotel where they were staying.
At 4:49 P.M. on the day of the surgery, Robert called the hotel's front desk seeking emergency help because Sharon had stopped breathing. Emergency personnel transported Sharon to a local hospital where she was pronounced dead. A toxicology report revealed the presence of multiple opioids and several central nervous system depressants ("CNSDs"), including Dilaudid
, Flexeril, OxyContin, and Donnatal. The coroner concluded that the cause of death was the "synergistic" effect of the multiple CNSDs.
Kimble initiated this suit in January of 2016 and raised claims under the Wrongful Death Act and the Survival Act. See 42 Pa.C.S.A. §§ 8301, 8302. As the trial neared, Kimble filed a motion in limine to preclude "use, reference to, or commentary on" documents relating to what Kimble termed "alleged marital discord." The documents at issue included those relating to proceedings in Ohio pursuant to statutes relating to orders of protection,1 akin to Protection from Abuse ("PFA") Act orders in Pennsylvania. Others related to Sharon and Robert's 2012 divorce:
Plaintiff's Motion in Limine to Preclude Any Reference to Documents, Statements or Materials Related in Any Way to Alleged Marital Discord, at 2.
Kimble maintained that such evidence was inadmissible under Pa.R.E. 404(b) as improper character evidence. Appellants responded that the documents were relevant to the Wrongful Death claim for loss of society and companionship. N.T., 3/19/18, at 6.2 The court agreed that questioning Kimble about alleged "discord" was relevant. However, it expressed concern that Id. at 18. It thus stated that it was "willing to consider" allowing cross-examination with documents that reflect "some kind of conclusion," such as records of a conviction, as that would be a "matter of record." Id. at 23.
The court and parties then discussed the admission of such documents. The court stated that Appellants would need a certified record or exemplar in order to admit any of the Ohio records as a public record. Id. at 24.
The court pointed out that the 2011 PFA did not include factual findings by a court and the documents were unclear as to the disposition of the action. Id. at 17-18, 30-34. Regarding the 2011 arrest, the court concluded:
This is certainly a sufficient basis to ask him the question. But it appears that [Appellants are] stuck with his answer, because he has nothing definitive that shows that a final finding from any court as to what the ultimate resolution was. If he has that, that's a smoking gun if he disagrees with it. It certainly is a sufficient basis to ask a question, but you're stuck with his answer.
Regarding the divorce decree, which states the court granted the divorce based on gross neglect and extreme cruelty, the trial court concluded it was relevant but the decree itself could only be admitted if properly authenticated:
You have got bookends[3 ] with a whole lot of smoke in between. And that smoke I don't want coming in because they cannot be established. It's too collateral. Too prejudicial and too collateral. We'll wind up with a trial about something else. But, again, unless you have the documents to properly introduced, ... you're stuck with his answer.
At the jury trial, before Appellants cross-examined Kimble, the parties and court again discussed the PFA. The court reiterated that Appellants could ask Kimble about it but were "limited to his answers, unless you can establish something." N.T., 3/20/18, at 63. During the cross-examination, Kimble agreed Sharon had obtained a PFA against him in 2011 and admitted that they had divorced in early 2012 and subsequently remarried. Id. at 68-78. When asked Sharon's reasons for seeking the divorce, Robert answered that he did not know. Id.
Kimble submitted a proposed verdict slip identifying the defendants as "Glen Rubenstein, M.D." and "Laser Spine Institute." LSI and Dr. Rubenstein jointly proposed a verdict slip that likewise referred to the defendants as "Glen Rubenstein, M.D." and "Laser Spine Institute." The parties ultimately agreed to a verdict slip that used that nomenclature. See N.T., 3/28/18, at 2. Throughout trial, the parties referred to all of the LSI Defendants collectively as either the "Laser Spine Institute" or "LSI." The LSI Defendants at no time objected that doing so was improper.
Following deliberations, the jury returned a verdict in favor of Kimble and awarded $10 million in Wrongful Death Act damages and $10 million in Survival Act damages, for a total of $20 million. It apportioned liability between "Laser Spine Institute" and Dr. Rubenstein—65% and 35%, respectively.
Appellants filed timely post-trial motions, alternatively seeking on various grounds JNOV, a new trial, or remittitur. Kimble did not oppose Appellants’ request for JNOV as to the Survival Act award. The trial court granted that relief, effectively striking the $10 million Survival Act award. However, it denied Appellants’ remaining post-trial motions, including the request for JNOV or remittitur as to the $10 million Wrongful Death Act award.
Kimble then moved for delay damages. In their response to the motion, the LSI Defendants asserted that the jury verdict was not against all of the LSI Defendants collectively but instead against "Laser Spine Institute" alone. The court awarded $500,273.97 in delay damages, and Kimble filed a praecipe to enter judgment. The LSI Defendants moved to strike the praecipe, or any judgment entered pursuant to it. They renewed their assertion that "the jury did not enter a verdict against them" but rather against "Laser Spine Institute," which they termed "a trade name only."4 They contended that there was in fact no evidence at trial against any of the LSI Defendants and that Kimble's praecipe was an attempt to amend the verdict. They thus maintained that any judgment entered on the verdict and against them would violate due process. The trial court did not rule on the motion because by the time...
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