Brennen, M. v. Smith, J.
CourtSuperior Court of Pennsylvania
Date FiledOctober 26, 2026
Docket1050 WDA 2025
JudgeMcLaughlin
StatusUnpublished
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Full Opinion
J-A16011-26
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
MATTHEW S. BRENNEN AND LISA R. : IN THE SUPERIOR COURT OF
BRENNEN, HIS WIFE : PENNSYLVANIA
:
:
v. :
:
:
JASON A. SMITH D.O. AND TRI- :
COUNTY UROLOGY ASSOCIATES, INC. : No. 1050 WDA 2025
:
Appellants :
Appeal from the Judgment Entered July 28, 2025
In the Court of Common Pleas of Fayette County Civil Division at No(s):
2019-01783
BEFORE: McLAUGHLIN, J., KING, J., and BENDER, P.J.E.
MEMORANDUM BY McLAUGHLIN, J.: FILED: October 26, 2026
Jason A. Smith, D.O., and Tri-County Urology Associates, Inc. (“Tri-
County”) (collectively, “Appellants”) appeal from the judgment entered in
favor of Matthew S. Brennen (“Matthew”) and Lisa R. Brennen (“Lisa”)
(collectively, “the Brennens”). Appellants challenge the sufficiency of the
evidence, rulings on evidence, the weight of the evidence, and the imposition
of sanctions. We affirm.
Factual and Procedural History
The Brennens filed a complaint asserting malpractice claims against
Appellants following a vasectomy performed by Dr. Smith. At the time, Dr.
Smith was a shareholder in and worked at Tri-County.
J-A16011-26
A. Pre-Trial Discovery and Motions
In October 2019, before initiating the lawsuit, Matthew executed an
authorization of release of protected information seeking his medical records.
See Pl.’s Em. Mot. for Sanctions, filed Dec. 12, 2022, at Ex. A.1 The request
sought records of office visits, inpatient records, outpatient records, progress
notes, and “all details from” the vasectomy surgery. Id. Tri-County provided
12 pages of medical records. Id. at Ex. B. In January 2019, the Brennens’
counsel sent an authorization requesting full and complete medical records,
“including but not limited to telephone messages . . . .” Id. at Ex. C. Appellants
sent 11 pages of records. Id. In August 2019, the Brennens’ trial counsel sent
a second request for medical records, and received no response. Id. at Ex. D.
The Brennens’ counsel then filed the complaint, after which Appellants’ trial
counsel entered an appearance.
In response to the Brennens’ first set of interrogatories, where the
Brennens asked Dr. Smith to “provide a complete Bates-stamped copy of the
medical record of Plaintiff,” Dr. Smith stated, “See medical records produced
by Tri-County[].” Id. at Ex. E. Dr. Smith submitted the same response to the
requests for production of documents that sought medical records. Id. In
response to interrogatories, both Dr. Smith and Tri-County stated “not
applicable” to the interrogatory asking whether they believed there were any
errors or omissions in the medical records relevant to the claims. Id. at E. In
____________________________________________
1 The motion sought sanctions against Dr. Smith, Tri-County, and trial counsel
Alan Baum, Esquire.
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response to Appellants’ request for production of documents, the Brennens
produced a CD containing the medical records previously provided to them by
Appellants. Id. at Ex. F. Appellants did not supplement their discovery
responses.
Nine days prior to trial, during the cross-examination of the Brennens’
expert witness, Appellants’ trial counsel referenced a medical record that the
Brennens had not previously seen. Id. at ¶ 29. Appellants’ trial counsel said
the record had been in the medical chart. Id. Three days later, Appellants’
trial counsel delivered to the Brennens’ counsel the medical record referenced
at the deposition, which was labeled “phone note.” Id. at ¶ 31. The “phone
note” purported to be a memo of a conversation between a Tri-County
employee and a “lady,” in which they discussed Matthew’s pain.2 Id.
Appellants had not mentioned the phone note at any other deposition. The
____________________________________________
2 The phone note stated:
LADY CALLED FOR PT, STATING HE HAD VAS DONE BY
SMITH TWO DAYS AGO DONE AT ELITE, SHE SAID HE WAS
FINE YESTERDAY DIDN’T HAVE TO TAKE A PAIN PILL OR
ANYTHING UNTIL TODAY BECAUSE HE IS IN EXTREME PAIN
NOW. .. [SIC] SHE WAYS [SIC] HIS LEFT TESTICLE IS HIGH
UP AND THERE IS PAIN IN HIS STOMACH, SHE ALSO SAID
THAT THERE WAS A COMPLICATION AND SMITH HAD TO
MAKE A BIGGER INCISION TO FIND THE VAS DEF. SHE
WANTS SOMEONE TO CALL HER TO TELL HER WANTS [SIC]
NORMAL AND WHATS [SIC] TO LOOK OUT FOR? (Phone
number listed but excluded for privacy)
Pl.’s Em. Mot. for Sanctions, filed Dec. 12, 2022, at Ex. I.
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following day, Appellants’ trial counsel produced a 41-page medical record.
Id. at ¶ 34.
On December 9, 2022, the Brennens filed an emergency motion for
sanctions, seeking default judgment against Appellants or that Appellants be
precluded from using the additional medical records at trial and requested
sanctions against Appellants’ trial counsel. Pl.’s Em. Mot. for Sanctions, filed
Dec. 9, 2022, at ¶¶ 49-51. The court heard argument, where Appellants’ trial
counsel stated he believed the entire medical record had been produced. N.T.,
Dec. 9, 2022, at 20. The court entered an order continuing the trial and stating
the court would consider a request by the Brennens for any additional
expenses incurred and indicated it would consider an award of counsel fees,
if incurred. Order, Dec. 9, 2022. It provided:
[A]s a remedy for the failure of the defendants’, or,
counsel’s to have at a minimum negligently delayed
furnishing complete copies of all medical records previously
requested, it is hereby ORDERED that plaintiffs’ costs
incurred for investigation or further discovery; obtaining any
updated medical report or reports; supplemental video
depositions for use in discovery purposes, or, for use at trial;
including any costs incurred for rescheduling expert
witnesses or other witnesses for trial shall be paid by the
defense.
In addition, the Court will consider awarding counsel fees
to Plaintiffs’ counsel for all hours incurred pursuant to this
ORDER.
...
Plaintiff [sic] may petition for any and all other expenses
attributable to defendants’, or, counsel’s conduct.
Id.
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The Brennens through discovery sought the work history and contact
information for Eliza Wonsettler, who was the employee who allegedly took
the phone message, and an audit trail and meta data from the record program.
Mot. to Exc. Document, filed June 9, 2023, at ¶¶ 8-13. Tri-County responded
that it could not provide the documents because it had sold the practice and
had not preserved the information. Id. at ¶¶ 12-14. It did not provide contact
information for Wonsettler. Id.
The trial court summarized the ensuing discovery as follows:
After the continuation of trial, [the Brennens] sent a
second request for production of documents to [] Tri-
County. In it, they requested a clinic audit report for
[Matthew’s] electronic medical record, the entire note
history, audit trail and activity from any phone messaging
system including the phone note, the audit log and screen
shots of any drop-down menu options related to any phone
notes. [Appellants] responded that they could not access
the documents requested but that they would supplement
their response with additional documents as they became
available. [Appellants] allegedly sold their practice after [the
Brennens] filed this suit but failed to retain the documents
related to this case.
[The Brennens] also sought discovery information about
the author of the note, an employee of Tri-County, Eliza
Wonsettler. On December 29, 2022, [the Brennens] sent
interrogatories to Tri-County requesting information about
her work history and for the contact information for this
employee. Tri-County responded that they were unable to
access the information related to her employment history.
They only provided that she left voluntarily for a new
position, TriCounty was unable to provide any contact
information about this employee, as she had left their
employment.
Trial Ct. Op., filed Oct. 18, 2023, at 3-4 (“Mot. for Recon. Op.”).
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In July 2023, the Brennens sought to exclude the phone note. The court
granted the motion. Appellants filed a motion for reconsideration or
certification for immediate appeal, and at a hearing on the motion Appellants’
counsel stated he had located Wonsettler. Id. at 4. Trial counsel had not
provided her contact information to the Brennens’ counsel. Id.3 The court
denied reconsideration and the certification. Appellants appealed, and this
Court dismissed the appeal as premature.
In November 2023 and again in January 2024, Appellants sought to
preclude Dr. Navalgund from opining that Matthew would never obtain 100%
pain relief and that his loss of sexual function, loss of sensation, and
psychological condition were permanent. See, e.g., Defs.’ Mot. to Exclude
Exp. Opinions, filed Nov. 2, 2023, at 2; Defs.’ First Mot. in Limine to Preclude
Unqualified Expert Opinions of Yeshvant Navalgund, M.D., filed Jan. 12, 2024,
at 2.4 They argued the opinion testimony was outside the scope of Dr.
Navalgund’s report. The court denied the motion.
B. Jury Trial
At trial, Matthew testified that he first met Dr. Smith in September 2018,
when Matthew was 40 years old. N.T., June 10, 2024, at 117. He had been
____________________________________________
3 Counsel stated that they had located Wonsettler and were preparing
supplemental discovery responses. N.T., Aug. 23, 2023, at 7.
4 Appellants initially filed the motion after the court invited the parties to
submit argument with respect to objections raised during the deposition and
resubmitted it as a motion in limine. Defs.’ First Mot. in Limine to Preclude
Unqualified Expert Opinions of Yeshvant Navalgund, M.D., filed Jan. 12, 2024,
at 1.
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referred to Dr. Smith for a vasectomy. Id. Matthew said Dr. Smith did not
perform a physical examination at the September appointment. Id. at 119.
He testified that Dr. Smith performed the vasectomy the following month, in
October 2018. Matthew does not recall any discussions with Dr. Smith on the
date of surgery or on a later date. Id. at 125, 127. Matthew testified that as
the anesthesia wore off after the surgery, the pain got “worse, and worse, and
worse.” Id. at 128. He stated he did not know what to expect and thought “it
might be normal until it lasted -- it just kept getting worse and worse, and
then [he] couldn’t hardly move.” Id. Matthew stated he was not able to return
to work after three or four days, as he had been told, because he had to go
through a second surgery. Id. He did not return to work for 12 months. Id.
Matthew stated that on the third day after surgery, Lisa called Dr.
Smith’s office, who told her to take Matthew to the hospital. Id. at 129. He
testified that when she called, he was “literally stuck in a fetal position,” and
could not “straighten [his] body out.” Id. He said that when he tried to
straighten his body, “it felt like somebody had both hands inside just twisting
and ripping [his] insides out.” Id.
Matthew testified that the hospital note that said “onset two days” was
consistent with his memory of when the pain started, as it started as soon as
the anesthesia started to wear off. Id. at 131. He said there had been no
times when he was pain free. Id. He said the hospital note that he “report[ed]
severe pain of the left testicle with associated swelling on the left side of his
scrotum significantly worsened by walking, sitting, or urination” was accurate.
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Id. at 132. Matthew testified that he was admitted to the hospital because
there was no blood flow to his left testicle. Id. at 135.
Matthew said that when he was discharged and switched from the higher
narcotics used in the hospital to regular narcotics, the pain started to come
back. Id. at 137. He stated that he eventually went to West Virginia University
Medicine. Id. at 138. Matthew testified that there they performed a surgery
to remove the left testicle and “all the plumbing inside.” Id. at 139, 142. He
said the surgeon was Dr. Henry Fooks. Id. at 139. Matthew continued to feel
pain and numbness after the surgery and continued to see Dr. Fooks. Id. at
149, 155. In July 2019, Dr. Fooks referred him to the West Virginia University
Pain Clinic. Id. at 149, 155. Matthew said that Dr. Yeshvant Navalgund was
part of the pain management clinic and that while a patient at the clinic he
learned the numbness would be permanent. Id. at 155, 160.
Matthew said that Dr. Navalgund referred him to a nerve specialist, Dr.
Brandmeir, at West Virginia University Medicine. Id. at 160. He said that Dr.
Brandmeir told him that the pain would be permanent. Id. at 161. Matthew
testified that six years after surgery he has a “real dull sensation that . . .
never goes away.” Id. at 162. He stated that when he starts doing physical
activities or moving around a lot, the pain increases, and that although
sometimes he will not have pain for a few hours, “[o]ther times it’ll literally
drop [him] in his tracks whenever it hits.” Id. He said he has to “just lay there
and wait for it to release until [he] can get back up and start moving again.”
Id. He said he has returned to work but the pain sometimes prevents him
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from performing at work. Id. He testified that he can no longer complete some
elements of his job that he previously performed. Id. at 163. Matthew further
testified that he and Lisa cannot have sex as much as prior to the surgery and
“[i]t all depends on the pain, the numbness.” Id. at 167.
A urologist practicing at Allegheny Health Network, Dr. Thomas M. Jaffe,
testified for plaintiffs as an expert in “urology and vasectomy procedure.” N.T.,
June 11, 2024, at 19, 33. Dr. Jaffe reviewed Matthew’s medical records, Dr.
Smith’s deposition transcripts, and the trial testimony of Dr. Fooks and Dr.
Navalgund. Id. at 21-22. Dr. Jaffe testified that Dr. Smith did not meet the
standard of care in his dealings with Matthew. Id. at 24. He stated that the
“only structure that should be involved in a vasectomy is” the vas deferens
(“vas”). Id. at 34-35. He stated that urologists were supposed to meet with
patients in their office prior to the vasectomy surgery to find out any medical
problems or prior surgeries, to help determine whether they will be anxious,
and to examine them. He stated, “You want to make sure you can feel the
vas[], normally.” Id. at 40. He stated the “anatomy is important because it
kinda tells you whether you can do [the vasectomy] in the office, whether or
not any special techniques might need to be done, or any extra equipment,
etc.” Id. at 41. He stated that “the bottom line is you really want to know . .
. where the vas is, what it feels like, and what you need to do to access it
safely and divide it safely.” Id. Dr. Jaffe testified that the standard of care
mandates that urologists examine the patient’s genitals during the pre-
operative office visit and that Dr. Smith violated the standard of care when he
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did not do so. Id. at 43, 45. He further testified the failure to perform the
exam increased the risk that Matthew would suffer complications during the
surgery. Id. at 47.
Dr. Jaffe testified regarding Dr. Fooks’s notes following the surgery
removing the testicle. The notes stated that the spermatic cord had been
rotated greater than 180 degrees, which is called torsion, that the testicle was
ischemic, which meant it did not get blood, and that Dr. Fooks found several
clips “within the distal spermatic cord.” Id. at 78-79. Dr. Jaffe opined that the
torsion did not have anything to do with the ischemic testicle. Id. at 79. Dr.
Jaffe testified that clips or sutures should not have been placed in the distal
cord during a vasectomy. Id. at 79-80. Dr. Jaffe testified that during a
vasectomy, the surgeon should “isolate the vas away from the spermatic cord,
because everything is so close and tight together.” Id. at 80. Dr. Jaffe testified
that Dr. Smith’s operative note said that he placed a single clip across what
he thought might be a vas, but that the report was not accurate because Dr.
Fooks located multiple clips and sutures. Id. at 80-81. He stated that the
standard of care does not allow a doctor to put clips and sutures across the
spermatic cord. Id. at 85. Dr. Jaffe testified that the clips and sutures caused
Matthew’s left testicle to die. Id. at 87.
Dr. Jaffe further testified that cutting a structure that the surgeon could
not identify is a violation of the standard of care. Id. at 85. He stated that
when Dr. Smith had trouble locating the vas on the left side, he should have
stopped the surgery. Id. at 86. Dr. Jaffe testified that he had no doubt that
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Dr. Smith’s conduct caused Matthew’s ischemic left testicle, hospital visits,
and continued problems. Id. at 90.
Dr. Jaffe also testified that a “40-year-old male should not have
spontaneous twisting of his testicle . . . [and] there is no association with
vasectomy and developing torsion.” Id. at 97. He said that “the only way a
testicle can twist in this scenario is that it twists around something[ l]ike a
lead point and in this case it would either [be] the sutures or the clips that the
testicle twisted around.” Id.
On cross-examination, Dr. Jaffe testified that there are times where
urologists do not see a patient until the day of the surgery. He said that he
would prefer that the patient not be prepped and draped prior to deciding
whether the doctor can do the procedure, but agreed it was not a violation of
the standard of care if the examination occurred after the patient was
“prepped and draped.” Id. at 119-20. He then stated that, “Well they need to
be examined, period. Before you do any procedure.” Id. at 121. When asked
whether he agreed that there was no single standard of care that required an
office visit during which a “physical examination, hands-on of the genitals is
conducted,” Dr. Jaffe responded, “There is a standard of care, you should
examine the patient prior to the procedure.” Id. at 125. He stated that he
“[did not] think prepping and draping and then finding the vas to do the vas
is an examination.” Id. at 126. Dr. Jaffe agreed that one approach when the
vas cannot be felt is for the doctor to open the patient and look for the vas.
Id. at 124.
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When asked whether the vas was in the spermatic cord, Dr. Jaffe stated,
“Technically, I suppose.” Id. at 130. He stated that after a vasectomy, the
vas is outside the spermatic cord, but agreed that clips may be found within
the cord after a vasectomy. Id. at 130-31. Dr. Jaffe agreed that a testicular
torsion could cause ischemia. Id. at 150.
Dr. Smith testified in defense that he met with the Brennens in
September 2018 to discuss the vasectomy. Id. at 161. He stated that he did
not do a physical exam at that time. Id. at 162. Dr. Smith further testified
that he did not do a clinical exam prior to Matthew being sedated. Id. at 169.
Dr. Smith testified he was sure he placed a clip on the vas, even though the
operative report stated that after “[c]areful inspection of the entire cord
revealed only one very small firm structure which I cannot verify the vas. But
did place a clip on it in case that was the atrophic vas deferens on the left.”
Id. at 173. When read his note that stated he informed Mattew and Lisa that
he could not verify the left vas and therefore they should use an alternate
form of birth control until semen analysis, Dr. Smith said that this meant that
he “did not identify any normal vas[.]” Id. at 174.
On questioning by his counsel, Smith testified that the vas has a “very
specific . . . color and diameter,” and agreed that if he saw “something that’s
white and firm, regardless of its size, there’s a good chance that’s the vas.”
Id. at 235. He said the “only other possibility in [his] head [was] a nerve
structure” and that here it “was much firmer and bigger in diameter than you
typically would find with a nerve structure.” Id. He testified that vascular
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structures are “different colors[ and] softer in composition.” Id. at 236. He
stated that he could “unequivocally 100 percent say [he] did not clip or cut
the spermatic artery.” Id. at 245.
Lisa testified that her understanding was that the procedure would last
10 to 15 minutes but that it would be 30 to 45 minutes until she could see
Matthew. However, it was one and a half to two hours between when they
took Matthew for surgery and when she could see him. N.T., June 12, 2024,
at 24. She said that Dr. Smith came to talk to her and told her:
“This did not go as planned. When I went to the right side I
[was] able to verify at best, when I got to the left, I was not
able to, but I put a clamp on it to be safe” and my exact
words were, “What is the worst-case scenario?” And he said,
“Do not have unprotected sex for six weeks.” That was the
worst-case scenario.
Id. at 25. She said that Dr. Smith said that Matthew’s pain would be worse
than previously described and he would have to take more time off from work
and keep up on the pain medication. She stated that he said that instead of
“the small incision, he had to do one below as well.” Id.
Lisa said the first day Matthew “pretty much slept” and he walked to the
bathroom he had “shoulders hunched forward not up like he did before he
went into surgery.” Id. at 28. She testified that the next day was the same,
and she told him to keep taking the pain medication and that they had warned
him it would get worse. Id. She said by the second day he “was in excruciating
pain, . . . it[] stayed the same but it was to the point where he was nonstop.”
Id. at 29. She said she called the doctor’s office, who told her to go straight
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to the emergency room. Id. She said she was prompted to call because
Matthew had almost passed out when he tried to stand up too straight. Id.
Lisa testified she called an ambulance because she could not get Matthew to
walk from the bed. Id.
Lisa testified that Matthew still had pain and numbness that affected
him. Id. at 37. She testified neighbors have called because they have seen
Matthew lying next to the tractor due to the pain. Id. at 37-38. She said that
when he over exerts himself, he will “go down to the ground, he’ll have to
take a minute.” Id. at 38-39.
The video deposition of Dr. Henry Fooks, Jr. was played for the jury. Dr.
Fooks testified that while on call in October 2018, he received a call from the
hospital emergency department that Matthew was there complaining of
testicular pain after having had a vasectomy seven days prior. N.T. of Dep. of
Fooks, Dec. 5, 2022, at 6. He testified that thereafter he was Matthew’s
treating physician. Id. at 8. He testified that he held all of his opinions
regarding Matthew to a reasonable degree of medical certainty. Id. at 10. He
was offered as an expert in the field of urology. Id. at 21.
Dr. Fooks testified that based on the history taken at the hospital,
Matthew had been in pain since immediately following the vasectomy. Id. at
24-25. He stated that he surgically removed Matthew’s left testicle. Id. at 39.
He agreed that his operative note stated that the “cord appeared to be rotated
greater than 180 degrees,” and stated that meant the cord was twisted. Id.
at 40. He testified that torsion was “very rare, very rare” for a 40-year-old
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man Id. at 41. Dr. Fooks stated that he noticed clips and sutures and “if the
clips and the sutures were on the spermatic artery to the main artery to the
testicle, if there is a clip or sutures on that, then it can compromise blood
flow,” and that he “would be leaning that way” as to what happened in this
case. Id. at 42. He agreed that his report noted that there were multiple metal
clips and there were sutures “within the spermatic cord.” Id. at 43. He testified
that during a vasectomy, clips and sutures would not “intentionally” be placed
across the spermatic cord. Id. Dr. Fooks testified that he would not
recommend to his residents that they clip across something he or she could
not identify. Id. at 49-50. Dr. Fooks testified that at his appointments two
weeks after surgery, in December 2018, and in July 2019, Matthew continued
to have pain and numbness. Id. at 56-58. Dr. Fooks stated he referred
Matthew to the West Virginia University Pain Management Clinic. Id. at 59.
Dr. Fooks stated that he had never seen multiple clips and sutures
placed across a spermatic cord following a vasectomy except for Matthew. Id.
at 62. He further testified that occlusion or interruption of the spermatic artery
can cause testicular ischemia. Id. at 62-63. He agreed that during the surgery
his conclusion was that the clips and sutures placed during the vasectomy
surgery were the cause of the ischemia. Id. at 63.
On cross-examination, Dr. Fooks testified he did not see or note that
the clip was across the artery. Id. at 80. He said it was possible the torsion
created the lack of blood flow. Id. at 81. He agreed the lack of blood flow
occurred sometime after the vasectomy but he did not know when. Id. at 82.
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On re-direct examination, Dr. Fooks testified that at the time of the surgery,
he believed the spermatic artery had been clipped and did not believe the
torsion caused the lack of blood flow. Id. at 96. He further stated that “if he
really had to hang [his] hat on something” it would be that the clips and
sutures caused the testicle to “infarct” (i.e., die). Id. at 97.
The jury further saw the video deposition of Dr. Navalgund. Dr.
Navalgund testified he was an interventional pain management physician and
he testified as an expert in the fields of anesthesiology and pain management.
N.T. Dep. of Navalgund, Dec. 2, 2022, at 6, 12. He stated Matthew was his
patient and had complaints of groin pain, pain radiating to his testicle, pain
and numbness of the pelvic bone just above the penis, and the medial thigh.
Id. at 13. He described the pain treatment his office provided to Matthew. Id.
at 20-43. Dr. Navalgund testified that Matthew was “never going to get 100
percent pain relief.” Id. at 43. He stated Matthew continued to complain of
pain at the most recent visit prior to the deposition. Id. at 43-44. He testified
Matthew had “chronic pain.” Id. at 61. He further testified that “[t]here is no
doubt that . . . the permanency that he has experienced is the permanency of
loss of sexual function and psychological condition that he is in, as well as the
loss of sensation over the site of his penis, groin as well, as his thigh.” Id. at
78. He agreed that Matthew’s problems were the direct result of the
vasectomy. Id. at 79-80.
On cross-examination, Dr. Navalgund testified that the pain from
ischemia to a nerve would “spike initially as the ischemia progressed” such
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that “there would be the normal procedural pain, and then there would be an
uptick after that normal procedural pain.” Id. at 86. The pain for testicular
torsion would be “[v]ery acute[]” and it can “cause severe pain” often “driving
individuals immediately to an emergency room.” Id.
Dr. David Albala testified as a defense expert in urology. N.T., June 13,
2024, at 5, 21. He said that you do not need to do a physical exam at a prior
office visit, but “whether you do it in an office or before the surgery, as long
as you do it, and it was done,” and that “the standard of care is to examine
the patient before the surgical procedure.” Id. at 23, 72. He testified that
based on the documentation, Dr. Smith “did the vasectomy in a standardized
fashion that is acceptable within the standard of care.” Id. at 28. He stated
that a doctor should “make the best judgment [he] can,” and that Dr. Smith
“made the best judgment that he could. He felt that it was an [a]trophic vas,
and that’s reasonable to put clips on it. So, I think that what he did was
reasonable and that’s what a reasonable, thoughtful physician would do, and
that’s what I would’ve done.” Id. at 31. He further stated that an atrophic vas
typically does not carry sperm. Id. He pointed out that neither Dr. Smith nor
Dr. Fooks stated that the clipped structure was an artery. Id. at 33-34. He
stated that even if Dr. Smith had clipped the artery, the testicle still would be
viable, and the torsion is what caused the ischemia. Id. at 38-40. When asked
whether “the act of clipping or cutting or suturing around the spermatic cord
would inherently be the clipping or cutting or suturing the spermatic artery,”
and stated, “Correct. If you ligated the whole structure.” Id. at 59.
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On cross-examination, the Brennens’ counsel asked whether if “the jury
concludes that the medical records are to be believed and that no genital
examination is performed of Mr. Brennen by Dr. Smith, that jury should then
find that Dr. Smith violated standard of care with respect to physical
examination,” and Dr. Albala agreed that “that would be a true statement.”
Id. at 72.
The jury entered a verdict in favor of the Brennens and against
Appellants. It awarded $3,750,000 damages to Matthew for past and future
pain and suffering; $500,000 for past and future embarrassment and
humiliation; $3,750,000 for past and future loss of life’s pleasures; and
$500,000 for past and future disfigurement. The jury awarded Lisa $250,000
in damages for past loss of consortium and $750,000 for future loss of
consortium.
C. Post-Trial Proceedings
After trial, the Brennens filed a motion to confirm sanctions seeking
$150,907.83 in fees and costs.5 Mot. to Confirm Sanctions, filed July 29, 2024.
They attached documents related to the costs and fees and affidavits in
support. Appellants filed a motion for post-trial relief as well as a motion for
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5 The motion to confirm sanctions stated the court had authority to issue
sanctions under Rule 4019 and 42 Pa.C.S.A. § 2503. Motion to Confirm
Sanctions, filed July 29, 2024, at ¶ 5.
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reconsideration of the December 2022 sanction order.6 The motion for
reconsideration argued that the Brennens had not requested the documents
from Tri-County, the party who possessed the records, and therefore argued
there “ha[d] been no failure to make discovery.” Motion for Reconsideration,
filed July 1, 2024, at ¶ 30. They maintained “[Appellants] neither concealed
nor negligently failed to produce documents previously requested during
discovery. The documents at issue were not in the possession of Dr. Smith,
the only defendant who was requested to produce them.” Id. at ¶ 32.
The court held a hearing. At the hearing, Appellants were represented
by new counsel, who continue to represent them on appeal. Appellants’ trial
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6 The trial court describes the procedural history of the motion for
reconsideration as follows:
On December 15, 2022, Attorney Alan Baum filed in the
Office of the Prothonotary of Fayette County, Pennsylvania,
a Motion for Reconsideration. [T]he published (and available
online) Rule[s] of Civil Procedure for Fayette County require
counsel to provide a copy of a motion to the Court
Administrator to be listed for argument in Motions Court
with the assigned judge See F.C.R. 203.3. [Baum] failed to
do so.1 The Motion for Reconsideration of our December 9,
2022 Order sat idly by in the Prothonotary’s Office.2
1 On June 27, 2024, after the jury verdict, [trial counsel]
e-filed with the Prothonotary a (second) motion to
reconsider our Order of December 9, 2022.
2 Nor did [Baum] provide a courtesy copy of the Motion
to Reconsider to this Court, by regular mail, email or any
other means.
Trial Ct. OP., filed Nov. 25, 2025, at 8 (“Rule 1925(a) Op.”).
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counsel also was present. Appellants did not object to the Brennens’ affidavits
and exhibits and did not present any evidence.7 At the hearing, Appellants’
trial counsel reiterated the claims that the Brennens sought the medical
records only from Dr. Smith and that there was no discovery violation, and
contended that he justifiably believed all records had been produced. N.T.,
Oct. 24, 2024, at 80-92. He claimed his conduct and the conduct of his clients
was not willful or intentional. Id. at 83. Trial counsel further claimed the
Brennens were not prejudiced and there was no negligence. Id. at 83, 86.
Counsel for Appellants argued there was no prejudice because the court
continued the trial and argued a sanction should not be ordered without a
violation of a court order or rule. Id. at 112.
In July 2025, the court granted in part the motion to confirm sanctions
and awarded $60,010 in fees and $2,147.83 in costs. It stated the fees were
“necessitated by at least the negligent failure of the defendant[] or[] counsel
to provide full and complete medical records during discovery in a timely
manner prior to trial.” Order, July, 17, 2025. The court found that “while [it]
may suspect nefarious conduct by” Appellants or their counsel “[it] do[es] not
believe that the record will support a finding of knowing, deliberate, dilatory,
obdurate, or vexatious conduct but the record does support at least the
negligent conduct by one or more defendants[] or[] counsel, or their staff
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7 Trial counsel stated that he believed the hourly rate charged was excessive,
but that he “had no evidence to present to dispute the reasonableness.” N.T.,
Oct. 24, 2024, at 116-17. He stated he did not want to cross-examine anyone
on the charges or amounts. Id. at 117.
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employees, in failing to timely produce all pertinent medical records.” Id. It
then stated that it “believe[d] the partial relief granted herein, and; that
provided by Order of December 9, 2022; and the exclusion of the untimely
evidence were a sufficient remedy.” Id.
The trial court denied the motion for post-trial relief and motion for
reconsideration. In July 2025, judgment was entered. Appellants timely
appealed.8
Appellants raise the following issues:
1. Did the trial court err in denying JNOV where [the
Brennens’] experts failed to establish a standard of care
[Appellants] breached that caused [the Brennens’] harm,
particularly where [the Brennens’] own experts undermined
[the Brennens’] negligence theories, failed to present their
testimonies to a reasonable degree of medical certainty, and
left the jury to speculate about [Appellants’] negligence?
2. Did the trial court abuse its discretion by denying a new
trial after excluding a critical piece of evidence on hearsay
grounds, where the court refused to give [Appellants] an
opportunity to establish the evidence’s admissibility, two
hearsay exceptions applied, and the excluded evidence (a
note reflecting that [Matthew] was “fine” the day after
surgery) would have undermined [the Brennens’] entire
theory of the case, causing severe prejudice to [Appellants]?
3. Did the trial court abuse its discretion in refusing to grant
a new trial after allowing [the Brennens’] expert to testify
beyond the fair scope of his report, where the expert’s
testimony on the permanency of [Matthew]’s injury caused
[Appellants] significant surprise and prejudice?
4. Did the trial court abuse its discretion in refusing to grant
a new trial on weight-of-the-evidence grounds, where the
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8 Appellants’ trial counsel filed a separate appeal of the sanction order, which
is docketed at 1054 WDA 2025.
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overwhelming weight of the evidence does not support the
verdict, [the Brennens’] experts did not present evidence of
negligence to a reasonable degree of certainty, and
[Appellants’] experts established that [Appellants] did not
breach a standard of care that caused Mr. Brennen’s harm?
5. Did the trial court abuse its discretion in imposing
monetary sanctions, where [the Brennens] did not seek
monetary sanctions against [Appellants], it is unclear
against whom such sanctions were imposed or for what
conduct, fees or costs are not recoverable as a matter of
law, and the court imposed sanctions without evidence or a
finding of bad faith or sanctionable conduct?
Appellants’ Br. at 5-6 (suggested answers omitted).
Analysis
A. Whether Sufficient Evidence Supported the Verdict
In their first issue, Appellants argue that this Court should grant
judgment notwithstanding the verdict (“JNOV”) because the Brennens did not
establish an objective standard of care that Dr. Smith breached and that
caused harm. They point to testimony from the Brennens’ experts that
supports that urologists can first examine patients after they have been
prepped for surgery, and claim that pre-operative exams are not required.
They maintain that Dr. Jaffe testified that clips and sutures must be used
during a vasectomy.9 Appellants argue that without expert testimony
establishing an objective standard of care, the Brennens failed to prove the
first element of their claim: duty.
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