Nicholas Malfitano Aug. 20, 2015, 9:02am


HARRISBURG – In a ruling released July 30, the Superior Court of Pennsylvania upheld the Oct. 16, 2014, decision of the Dauphin County Court of Common Pleas to grant summary judgment in favor of John L. Pennock M.D. and Capital Area Cardiovascular Surgical Institute, and against Larry Runk II.

Judges Kate Ford Elliott, Victor P. Stabile and John L. Musmanno were the judges chosen to oversee this case, with Musmanno writing the opinion concurring with the trial court’s assessment.

In 2005, Pennock performed heart surgery on Runk, which included the placement of a medical device. In 2011, Runk filed a complaint against Pennock, alleging professional negligence related to the surgery.

In support of his claim, Runk submitted the expert report of Thomas J. Berger, M.D., who opined Pennock had breached “the applicable standard of medical care” when performing surgery on Runk. 

Subsequent to a hearing, the trial court determined that Dr. Berger was incompetent to render standard of care testimony at trial, as he had not been engaged in active clinical practice or teaching within the prior five years, pursuant to Pennsylvania state law.

Finally, Pennock filed a motion for summary judgment on the basis Runk was unable to establish a claim of professional negligence, because Runk’s sole expert witness was precluded from offering standard of care testimony.

Pennock subsequently withdrew his motion in favor of filing an amended motion for summary judgment versus Runk. As Runk failed to respond to the amended motion, the trial court treated the amended motion as uncontested. On Oct. 16, 2014, the trial court granted the amended motion. 

Runk later appealed, and asked the Superior Court of Pennsylvania to determine if the Dauphin County Court of Common Pleas mistakenly invalidated the planned testimony of his expert witness.

“Runk has failed to support his claims with citations to legitimate filings, evidence in the record, or relevant legal authority. Moreover, several of the issues raised by Runk on appeal do not pertain to issues properly raised in the trial court. Accordingly, Runk has failed to preserve them for our review,” Musmanno said.

Musmanno said when a motion for summary judgment has been filed, a response to that motion must be filed within 30 days. If not, summary judgment may be decided against a non-moving or unresponsive party, according to Musmanno. 

“Our review of the record in the light most favorable to Runk discloses that [Dr.] Berger retired from active clinical practice and teaching in 1998, approximately sixteen years prior to his anticipated trial testimony in this case, and that his sole source of income since 1998 has been expert consulting,” Musmanno said. 

“Accordingly, the trial court properly concluded that Dr. Berger was precluded from offering standard of care testimony because he had not been engaged in or retired within the previous five years from active clinical practice or teaching,” Musmanno added.

“Additionally, by failing to properly respond to the amended motion for summary judgment, Runk failed to raise any genuine issue as to any material fact, thereby entitling Dr. Pennock to judgment as a matter of law. Accordingly, the trial court properly entered summary judgment in favor of Dr. Pennock.”

The appellant was formerly represented by Joseph D. Buckley, in Carlisle.

The appellees are represented by Michael D. Pipa and Karen E. Minehan of Stevens Lee, in Harrisburg.

The Superior Court of Pennsylvania case 1950 MDA 2014

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nickpennrecord@gmail.com

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