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Cusick v. Adams, et al., Pa. No. CV-19-00058 (C.P. Lycoming January 30, 2023) (Linhardt, J.). Plaintiff maintains that allowing Dr. Rao to testify in accordance with the 2022 Rao Report would necessarily downplay Defendants’ negligence or causation. Plaintiff’s argument proceeds, essentially, as follows: 1) Dr. Rao fails to acknowledge the esophageal intubation; 2) Dr. Rao opines that Decedent had a diminished cardiac capacity, but fails to state that it was Defendants’ negligence that caused that diminished capacity; 3) Dr. Rao misleadingly states that Decedent was in cardiogenic shock and required life support due to his myocardial infarction, but these conditions were actually due to Defendants’ negligence; and 4) therefore, Dr. Rao’s opinion will mislead the jury by painting a bleak picture of Decedent’s health without acknowledging that Defendants were the cause of the bleak outcome. By its own terms, however, the life expectancy opinion in the 2022 Rao Report is based on Decedent’s risk factors and his medical condition when he arrived at Defendant hospital and prior to Defendants’ negligence. Plaintiff and her expert assert -strenuously -that Decedent did not exhibit cardiogenic shock or need life support until after Defendants negligently intubated Decedent. Plaintiff’s argument that Dr. Rao’s opinions would mislead the jury, though, assumes that Dr. Rao’s opinions are factually incorrect. Likewise, Defendants and Dr. Rao clearly believe that Dr. Hayek’s opinions are factually incorrect. In other words, whether Decedent’s cardiogenic shock and need for life support were caused by his myocardial infarction or by Defendants’ negligence is a disputed issue of fact for the jury to decide after hearing the evidence and opinions of both experts. Ultimately, the Court finds that the 2022 Rao Opinion does not misrepresent admitted facts, as Plaintiff contends, but rather reaches proper opinions based on a review of the evidence. Plaintiff is free to attack Dr. Rao’s conclusions at trial. For this reason, the Court will deny the motion to the extent it seeks to preclude Dr. Rae’s testimony in accordance with the 2022 Rao Opinion. Plaintiff is of course entitled to full compensation for the emotional and psychological harm caused by Decedent’s death. However, given that Defendants have acknowledged their negligence, and that they wrongfully caused Decedent’s death, the mechanism of Decedent’s death does not alter the fact of his death, or the character of his absence. Plaintiff’s argument is that she is entitled not just to compensation for the harm caused by the loss of Decedent, but for the harm caused by Plaintiff’s knowledge or observation of the particular mechanism by which he died.24 Plaintiff cites no legal support for the proposition that this sort of damage is compensable in wrongful death or survival cases. For the foregoing reasons, the Court holds that Decedent’s specific manner of death and the surrounding circumstances are not relevant to the issue before the jury, which is damages. Therefore, the Court will deny Plaintiff’s motion to admit testimony and evidence concerning Defendants’ negligence care. The Court has reviewed the 2023 Rao Report, and concludes that it does not raise any new or novel theories beyond those contained in the 2022 Rao Report. It responds to some of Dr. Hayek’s rebuttals of opinions in the 2022 Rao Report, and elaborates on the reasons Dr. Rao asserts those opinions. Although the Court urges parties to endeavor to file responsive expert reports more than one month prior to trial, here the contents of the report do not raise new issues beyond those already in dispute. As noted above, preclusion of expert testimony is a drastic remedy that should not be applied unless absolutely necessary. Here, the report is not so late, and its contents not so disruptive, as to require that harsh remedy. For this reason, the Court will deny Plaintiff’s Motion in Limine to preclude the 2023 Rao Report. Without mandatory guidance from statute or a higher court, this Court cannot agree that the appropriate degree of compensation for a surviving spouse’s emotional and psychological loss is lessened by a remarriage. Human emotions are complex, and happiness, sadness, love and loss are not so easily framed as a zero-sum calculation. On the contrary, it is quite understandable for the law to acknowledge that a surviving spouse’s loss is unique and immutable, carried forever without diminution regardless of what the rest of the survivor’s life has in store. For this reason, the Court will grant Plaintiff’s Motion in Limine to preclude any reference to Plaintiff’s remarriage. The Court agrees that although Defendants are not permitted to seek sympathy or bias, be it through the presentation of testimony or evidence or statement of counsel, the law does not require Defendants to present themselves to the jury as blind to the tragedy of Decedent’s death, which Defendants acknowledge they caused and are thus liable for. The Court holds that the expression suggested above -an acknowledgment during the opening statement and/or closing argument “that simply because the case will go to trial and the jury will be asked to assess and award damages does not mean that the defendants do not care, or are not sympathetic to the plaintiff’s loss, which involves the death of plaintiff’s husband” -is appropriate and does not risk the jury devaluing Plaintiff’s claim because they are sympathetic to Defendants.


For the foregoing reasons, the Court hereby ORDERS as follows:

• Plaintiff’s Motion in Limine to Preclude Defendants from Denying Negligence or Causation, including via Dr. Rao, is DENIED to the extent it seeks the exclusion of Dr. Rao’s testimony and opinions. In all other respects, the Motion is MOOT, as Defendants have admitted negligence and causation and have asserted that they will not present testimony or evidence to undermine these admissions.

• Plaintiff’s Motion to Permit Plaintiff to Introduce Evidence of Decedent’s Medical Care, including Defendants’ Negligent Care, is DENIED.

• Plaintiff’s Motion to Preclude Late Produced Report of Dr. Sunil Rao is DENIED.

• Plaintiff’s Motion to Preclude Evidence of and References to Remarriage of Plaintiff is GRANTED.

• Plaintiff’s Motion to Preclude Defendants’ Comments, Arguments, or Statement Regarding Defendants’ Sympathy or Remorse for Decedent’s Death is DENIED IN PART. Defendants may include the sum and substance of the statement they suggested in their responsive brief as part of their opening statement or closing argument.