           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                          August 27, 2008

                                       No. 07-40326                   Charles R. Fulbruge III
                                                                              Clerk

UNITED STATES OF AMERICA

                                                  Plaintiff - Appellee
v.

ORLANDO BENAVIDES

                                                  Defendant - Appellant

                   Appeal from the United States District Court
                        for the Southern District of Texas

Before JOLLY, CLEMENT, and OWEN, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:*
       Orlando Benavides was arrested in Laredo, Texas when police found that
he was transporting crates full of cocaine and marijuana. He moved the district
court to suppress the drugs as evidence against him, arguing that the police had
only discovered the contents of the crates by violating his Fourth Amendment
rights. The district court denied Benavides’s motion and found him guilty after
a brief bench trial. We REVERSE the district court’s denial of this motion,

       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                                       No. 07-40326

VACATE Benavides’s conviction and sentence, and REMAND for further
proceedings not inconsistent with this opinion.
                                               I.
       On May 7, 2001, Joe Benavides, a member of the Laredo Multi-Agency
Narcotics Task Force, received a tip from an anonymous caller.1 The caller
reported that a pickup truck at a specific address was carrying large wooden
crates and that two individuals were loading the crates with packages or
bundles. The caller also provided a detailed description of the pickup truck,
including its license plate number. The caller did not provide any information
as to the possible contents of the bundles, and Benavides did not obtain any
information about the caller’s location or source of knowledge.
       Benavides informed other officers on the task force about the tip and
began to drive toward the address reported by the anonymous caller. While en
route, he passed a truck matching the description provided by the tip and
followed it in his unmarked vehicle. Benavides also informed responding task
force members over radio that the truck was no longer at the reported address.
       The task force coordinated with the Laredo Police Department in order to
initiate a traffic stop on the truck, although at the time the truck had committed
no traffic violation. A general alert regarding the truck was sent out over radio,
and Officer Roland San Miguel, who was on patrol with a canine in his unit,
responded. Officer San Miguel passed the truck while the truck was heading in
the opposite direction, turned around, and approached the truck from the rear.
The truck moved onto the improved shoulder of the road. Officer San Miguel
turned on his emergency lights and initiated a traffic stop. The driver of the
truck, Oscar Benavides, exited the truck, and Officer San Miguel informed him
that he had been pulled over for driving on the shoulder of the road. Officer San

       1
         Benavides testified that his secretary initially took the call, but the record does not
reflect whether the call was routed to Benavides’s secretary or came in directly.

                                               2
                                    No. 07-40326

Miguel then told Benavides that he was suspected of drug transportation. No
traffic citation was ever issued.
      Members of the task force arrived shortly after Officer San Miguel
initiated the traffic stop. The investigators questioned Benavides about the
contents of the crates in his truck, and Benavides told them that the crates
contained motor parts. Benavides also confirmed the address given by the
anonymous caller. After a disputed amount of time, the investigators presented
Benavides with a search consent form, which he signed. Officer San Miguel’s
drug dog then alerted to the presence of drugs in the crates. The officers opened
the crates and discovered 105 kilograms of cocaine and 318 kilograms of
marijuana contained in bags in the crates.
      Benavides was subsequently charged with conspiracy to possess and
distribute controlled substances.      He attempted to suppress the evidence
acquired at the traffic stop, arguing that his Fourth Amendment rights were
violated because he was stopped without probable cause and he did not
voluntarily give his consent to be searched. The district court found that the
anonymous tip provided probable cause to stop the vehicle and that consent was
voluntarily given. The district court did not rely on Benavides’s putative traffic
violation as a basis for its decision. His motion to suppress denied, Benavides
proceeded to a bench trial on stipulated facts and was found guilty. He now
appeals, arguing that the district court erred in its denial of his motion to
suppress.
                                        II.
                                        A.
      On appeal, “we review the district court's factual findings for clear error
and its legal conclusions de novo. For our review, we may consider all of the
evidence presented at trial, not just that presented before the ruling on the
suppression motion, in the light most favorable to the prevailing party, which in

                                         3
                                  No. 07-40326

this case is the Government.” United States v. Ibarra, 493 F.3d 526, 530 (5th
Cir. 2007) (internal citation omitted).
                                          B.
      We begin our analysis with the stop of Benavides’s vehicle. “The Fourth
Amendment prohibits unreasonable searches and seizures. There is no question
but that the stopping of a vehicle and the detention of its occupants is a ‘seizure’
within the meaning of the Fourth Amendment.” United States v. Shabazz, 993
F.2d 431, 434 (5th Cir. 1993). As such, “searches and seizures of motorists who
are merely suspected of criminal activity are to be analyzed under the framework
established in Terry v. Ohio, 392 U.S. 1 (1968).” Shabazz, 993 F.2d at 434
(emphasis in original). That framework permits “[a]n investigative vehicle stop
. . . only when the officer has a reasonable suspicion supported by articulable
facts that criminal activity may be afoot.” United States v. Jaquez, 421 F.3d 338,
340 (5th Cir. 2005) (internal quotation marks omitted). The government bears
the burden of showing the “minimal level of objective justification” for a
warrantless seizure. See id.
      Here, the Government relies on the anonymous tip as the basis for the
reasonable suspicion justifying Benavides’s seizure. An anonymous tip can
provide such reasonable suspicion, so long as it is reasonable “in light of the
‘totality of the circumstances.’” See United States v. Bolden, 508 F.3d 204, 206
n.2 (5th Cir. 2007) (quoting United States v. Hernandez, 477 F.3d 210, 214 (5th
Cir. 2007)). But, crucially, an anonymous tip must “be reliable in its assertion
of illegality, not just in its tendency to identify a determinate person.” Florida
v. J.L., 529 U.S. 266, 272 (2000).
      The anonymous tip that Joe Benavides received alleged no criminal
activity. It merely described the truck, the truck’s location, and the fact that the
truck was being loaded with unknown cargo. Although the government relies
heavily on the specificity and accuracy of the tip, it can point to no specific

                                          4
                                      No. 07-40326

assertion of illegality, much less a verifiable assertion of illegality. The only
further articulation of reasonable suspicion made by Benavides was that the
area in which the truck was loaded was not a warehouse district. Thus, the facts
alleged by the government to support its claim of reasonable suspicion show that
Oscar Benavides and another man put unidentified bundles into crates and
carried out these activities at an address that was not located in a warehouse
district.2   The tip alone therefore alleges only identifying information,
insufficient under J.L. for a finding of reasonable suspicion. See 529 U.S. at
271–72 (finding no reasonable suspicion for seizure where anonymous tip
accurately identifying a person further alleged only that the identified person
was illegally carrying a gun). And the police did not improve on these bare facts
in order to find reasonable suspicion before the traffic stop was made.
                                            C.
       Although it declined to rely on Benavides’s alleged traffic violation before
the district court and in its brief, the government did make a belated assertion
at oral argument that the seizure was independently justified because Benavides
violated a traffic law. The record before us does not permit this conclusion.
       Police officers may stop an automobile when there is probable cause to
believe that a traffic violation has occurred, even if the stop is otherwise
pretextual. See United States v. Lopez-Valdez, 178 F.3d 282, 288 (5th Cir. 1999).
But, “where the supposed traffic infraction that formed the basis for a vehicular
stop in fact was not a violation of state law, there [is] no objective basis for
probable cause justifying the stop.” Id. This court has also recognized that
traffic stops without probable cause and based on traffic violations may be
justified under the Terry framework. E.g., United States v. Sanchez-Pena, 336
F.3d 431, 436–37 (5th Cir. 2003). Under this approach, “whether a traffic stop

       2
        The district court also discussed the fact that these activities occurred in Laredo,
Texas, apparently taking judicial notice of frequent drug-trafficking there.

                                             5
                                       No. 07-40326

complies with the Fourth Amendment depends upon two factors: whether the
stop was justified at its inception and whether the Fourth Amendment
intrusions were reasonably related in scope to the circumstance that justified the
interference in the first place.” Id. at 437. And, as discussed above, “[t]he officer
must be able to point to specific and articulable facts which, taken together with
rational inferences from those facts, reasonably warrant the intrusion.” Id. The
officer’s subjective motives for the stop are irrelevant. Id.
       Texas law explicitly permits a vehicle operator to drive on an improved
shoulder for a variety of purposes so long as “the operation is necessary and may
be done safely.” TEX. TRANSP. CODE § 545.058(a). Driving on an improved
shoulder, without more, is therefore not a violation of a state traffic law. Cf.
United States v. Miller, 146 F.3d 274, 279 (5th Cir. 1998) (finding no probable
cause for a traffic stop when motorist’s activities did not violate any traffic law
cited by the prosecution). Officer San Miguel did not offer—and the record does
not indicate— other facts tending to raise a reasonable suspicion that Benavides
had committed a traffic violation by moving onto the shoulder.3 The record does
not describe any actions that Benavides took that were unsafe or unnecessary
or any other factual basis for why § 545.058(a) would not apply. Indeed, Officer
San Miguel allowed that Benavides’s actions may have been designed to allow
him to pass as he approached from behind, a scenario that § 545.058(a)(5)
explicitly reaches. The absence of such facts in the record requires us to
conclude that the traffic stop here did not comply with the requirements of the
Fourth Amendment.

       3
         During testimony related to the motion to suppress, Joe Benavides referred to Oscar
Benavides in passing as “weaving,” potentially implying that Oscar Benavides changed lanes
multiple times. But the specific factual testimony offered by Officer San Miguel indicates that
Benavides moved onto the improved shoulder only once. And the limited evidence in this
record does not support the government’s later assertions that the stop was justified because
Benavides failed to drive in a single lane, see TEX. TRANSP. CODE § 545.060(a)(1), or failed to
display warning flags on his cargo, see TEX. TRANSP. CODE § 547.382(b).

                                              6
                                 No. 07-40326

                                       D.
      As a general matter, “all evidence derived from the exploitation of an
illegal search or seizure must be suppressed, unless the government shows that
there was a break in the chain of events sufficient to refute the inference that
the evidence was a product of the constitutional violation.” Miller, 146 F.3d at
279. And “[c]onsent to search may, but does not necessarily, dissipate the taint
of a fourth amendment violation.” United States v. Chavez-Villarreal, 3 F.3d
124, 127 (5th Cir. 1993).     Evidence obtained due to consent, but after a
constitutional violation, will be admitted only if the consent was voluntary and
if it was an independent act of free will. Id. This latter requirement focuses on
the causal link between the constitutional violation and the subsequently
procured evidence. United States v. Vega, 221 F.3d 789, 801 (5th Cir. 2000). “To
determine whether the causal chain was broken, we consider: (1) the temporal
proximity of the illegal conduct and the consent; (2) the presence of intervening
circumstances; and (3) the purpose and flagrancy of the initial misconduct.”
Chavez-Villarreal, 3 F.3d at 128. The government has the burden of showing
admissibility. Id.
      Here, each of the factors described in Chavez-Villarreal favors suppression.
The district court correctly determined that Benavides had given his consent
shortly after he was illegally detained: The anonymous call was received at
10:00 a.m. and the consent form shows that it was completed at 10:35 a.m. Cf.
id. (finding first factor favored suppression when less than fifteen minutes
elapsed between illegal stop and consent for search). The record gives no
indication of intervening circumstances between the illegal stop and Benavides’s
consent to the search. Instead, four members of the narcotics task force arrived
immediately after Officer San Miguel stopped Benavides, identified themselves
as narcotics officers, and sought Benavides’s consent.       Although they told

                                        7
                                  No. 07-40326

Benavides he could refuse consent, the record does not show that he was told
that he was free to leave, and the circumstances of the stop indicate that he
would have had no reason to believe that this option was available. See United
States v. Santiago, 310 F.3d 336, 343 (5th Cir. 2002); United States v. Jones, 234
F.3d 234, 243 (5th Cir. 2000). And, finally, the record plainly shows that the
purpose for stopping Benavides was to search Benavides’s truck for drugs. The
government has not shown any way in which the consent to search was not
contemporaneous with the constitutional violation. See Santiago, 310 F.3d at
343. Accordingly, Benavides’s consent does not “dissipate the taint” of the initial
illegal seizure.
                                       III.
      Officer San Miguel seized Oscar Benavides in violation of the Fourth
Amendment. This violation was not cured by the consent form that Benavides
signed. Consequently, the district court should have granted Benavides’s motion
to suppress. We accordingly REVERSE the district court’s denial of the motion
to suppress, VACATE Benavides’s conviction and sentence, and REMAND for
further proceedings not inconsistent with this opinion.
                                   REVERSED, VACATED, AND REMANDED

                                        8
                                   No. 07-40326

EDITH BROWN CLEMENT, Circuit Judge, dissenting:
      I respectfully dissent from the majority’s reversal of the denial of
Benavides’s motion to suppress, because I believe that the “totality of the
circumstances” provided reasonable suspicion to stop Benavides’s vehicle.
      The majority’s holding that the stop was unconstitutional relies on
Florida v. J.L., in which an anonymous caller reported to the police that a
young black male standing at a particular bus stop and wearing a plaid shirt
was carrying a gun. 529 U.S. 266, 268 (2000). The police arrived at the bus
stop, identified a black male with a plaid shirt, frisked him, and seized a gun
from his pocket. Id. The defendant was 15 years-old at the time of his arrest,
and he was charged under state law with carrying a concealed firearm
without a license and possessing a firearm while under the age of eighteen.
Id. at 269. The Supreme Court held that the anonymous tip could not
support a finding of reasonable suspicion in that case, because it was reliable
only “in its tendency to identify a determinate person,” but not “in its
assertion of illegality.” Id. at 272.
      The tip received by the police in J.L. was entirely bare of any element
linking the identified individual with criminal activity. The only allegation
raised by the J.L. tipster was that the individual was in possession of a gun,
an act that is not inherently illegal. This court has distinguished reasonable
suspicion of gun possession, which, by itself, cannot justify an investigative
stop, from “reasonable suspicion concern[ing] the possession of narcotics, an
act that is per se illegal.” United States v. Roch, 5 F.3d 894, 899 (5th Cir.
1993). In this case, even though the tipster did not explicitly refer to the
presence of narcotics in the crates, the context of the call clearly indicated
that he was reporting drug-related activity. At oral argument, the parties
were unable to explain how the call got to the desk of Joe Benavides, a

                                        9
                                       No. 07-40326

member of a police task force specializing in narcotics law enforcement.
Nevertheless, either the call was transferred to the Laredo Multinarcotics
task force by some other police entity, such as a 9-1-1 operator—in which case
the tipster necessarily must have indicated during this initial conversation
that he was suspecting narcotics activity; or the tipster directly called the
Laredo Multinarcotics task force—in which case, Joe Benavides could not
only legitimately conclude that the tip concerned narcotics-related conduct,
but also assume that the tipster had some experience in reporting this type of
activity. See United States v. Hernandez, 477 F.3d 210, 215 (5th Cir. 2007)
(noting that “[t]he tipster call was a rifle-shot to the nearest checkpoint
facility, out of which the roving patrols were based, as opposed to any other
office in the Laredo Sector, suggesting familiarity with the Border Patrol and
knowledge and experience with reporting illegal activity”). In either case, Joe
Benavides was obviously aware that the tipster was reporting drug-
trafficking activity and had no reason to delay his verifying the information
with further questioning.1 The majority opinion fails to consider the nature of
the information reported and the context in which the call was received,
which distinguish this case from J.L. In summarily concluding that the tip
contained only “identifying information” insufficient to provide reasonable
suspicion for the stop under J.L., it ignores the spirit of the “totality of the
circumstances” approach, which requires this court to “eschew[] bright-line
rules, instead emphasizing the fact-specific nature of the . . . inquiry.” United
States v. Brigham, 382 F.3d 500, 507 (5th Cir. 2004) (internal quotation
omitted).

       1
         In fact, had Joe Benavides prolonged the call, he may not have been able to follow up
on the information reported, because the pick-up truck had left the location identified by the
tipster and was spotted by Joe Benavides while en route to that location.

                                             10
                                 No. 07-40326
      “Instead of adopting any bright line rule, courts must examine the
factual circumstances surrounding each anonymous phone tip to determine
whether the police reasonably could have considered it to be sufficiently
reliable information as a basis for their actions.” United States v. Casper, No.
06-11381, 2008 WL 2779268, at *7 (5th Cir. July 18, 2008) (Dennis, J.,
concurring). The “factual circumstances” typically considered by this
court—and which the majority fails to examine—include
      the credibility and reliability of the informant, the specificity of
the   information contained in the tip or report, the extent to which the
      information in the tip or report can be verified by officers in the
      field, and whether the tip or report concerns active or recent
      activity, or has instead gone stale.
United States v. Gonzalez, 190 F.3d 668, 672 (5th Cir. 1999). Where the tip
was anonymous, as here, the police have no means of assessing the
“credibility and reliability of the informant.” Id. Nevertheless, there are
situations in which an anonymous tip exhibits “sufficient indicia of reliability
to provide reasonable suspicion to make the investigatory stop,” Alabama v.
White, 496 U.S. 325, 327 (1990), particularly where, as here, all of the other
Gonzalez factors are satisfied. See Casper, 2008 WL 2779268, at *4 (noting
that “[w]here the tip is anonymous, the credibility and reliability of the
informant cannot be determined, and the government must establish
reasonable suspicion based on some or all of the other factors”). The
information provided by the tipster was very specific, and included a detailed
description of the pick-up truck and its license plate number; every element of
that description was validated by Joe Benavides before the vehicle was
stopped. In addition, the tipster was reporting ongoing events as he was
observing them, which gives additional credence to the tip. See United States
v. Bolden, 508 F.3d 204, 206 n.2 (5th Cir. 2007) (holding that reasonable
suspicion to stop individuals involved in a shooting was warranted when “the

                                       11
                                  No. 07-40326
tip was specific as to location of the shooting and dealt with recent or even
ongoing activity, and the officers could verify the information, because they
personally heard the gunshots” (internal quotations omitted)). In light of
these factors, I believe that the tip, though anonymous, presented sufficient
“indicia of reliability” to form the basis for the stop of Benavides’s vehicle.
      Finally, the majority notes, but fails to take into account, two other
elements that bolster the police’s reasonable suspicion. First, Joe Benavides
testified that the activity reported struck him as suspicious because the truck
was allegedly being loaded at a location that is not in a warehouse area. The
majority should have given this testimony of a police officer who specialized
in narcotics work the “due weight” it is entitled to in light of his “experience
and expertise.” Ornelas v. United States, 517 U.S. 690, 699 (1996). Second,
the district court, in denying Benavides’s motion to suppress, considered the
fact that the activities reported were taking place in Laredo, Texas, a city
located near the Mexican border—presumably, an area where drug-
trafficking is frequent. The majority notes this observation in a footnote
without explaining how it affects its analysis, even though it is well-
established that “[t]he characteristics of the area in which the vehicle was
encountered and the area’s proximity to the border are important
considerations in the reasonableness determination.” Hernandez, 477 F.3d at
213; see also United States v. Mendenhall, 446 U.S. 544, 563–64 (1980)
(recognizing that “[l]aw enforcement officers may rely on the characteristics of
the area” to form their “reasonable suspicion” of criminal activity (internal
quotation omitted)). Though these elements “by themselves may appear
innocent,” they are combined here with a highly specific tip corroborated by
the police; this falls squarely within the ambit of situations in which all
factors considered “in the aggregate rise to the level of reasonable suspicion.”
United States v. Ibarra-Sanchez, 199 F.3d 753, 759 (5th Cir. 1999).

                                        12
                                       No. 07-40326
       In light of the foregoing, I disagree with the majority’s holding that the
investigative stop of Benavides’s vehicle was a violation of the Fourth
Amendment. Therefore, the search of the truck bed, which uncovered the
narcotics evidence at issue, was not tainted by a prior unconstitutional stop.
The Fourth Amendment permits police officers who have lawfully detained a
vehicle to search it without first obtaining a warrant so long as they “have
either the consent of the owner to conduct the search or probable cause to
believe that the vehicle contains contraband or other evidence of a crime.”
United States v. Mendoza-Gonzalez, 318 F.3d 663, 666 (5th Cir. 2003).
Shortly after Benavides was pulled over, Officer San Miguel conducted a
“canine sniff” by a narcotics-detection dog around the exterior of a vehicle.
This “free-air search” does not constitute a “search or seizure” under the
Fourth Amendment and can be conducted without consent. United States v.
Duffaut, 314 F.3d 203, 208 (5th Cir. 2002). And “[o]nce a dog has alerted to
the presence of narcotics, agents have sufficient probable cause to conduct a
search of the vehicle.” Id. Therefore, after the dog alerted to the crates
loaded in the truck bed, the police had probable cause to search the truck and
open the crates, and Benavides’s consent was not required.2
       For these reasons, I would affirm the district court’s denial of
Benavides’s motion to suppress.

       2
         Because the search of Benavides’s vehicle was justified by probable cause, I do not
reach the issue of whether Benavides’s consent to the search was voluntary. Nevertheless, it
is worth noting that Benavides’s argument that his consent was involuntarily given is
inconsistent with his testimony at the suppression hearing, where he stated that he had
enough education to read and understand the consent form, that he in fact understood the
form, and that he knew he had the right to refuse to sign it. See United States v. Jones, 234
F.3d 234, 242 (5th Cir. 2000) (noting the six factors typically examined by this court in
assessing voluntariness of consent: “1) the voluntariness of the defendant’s custodial status;
2) the presence of coercive police procedures; 3) the extent and level of the defendant’s
cooperation with the police; 4) the defendant’s awareness of his right to refuse consent; 5) the
defendant’s education and intelligence; and 6) the defendant’s belief that no incriminating
evidence will be found”).

                                              13


               THE     ATTORNEY             GENERAL
                           OF    TEXAS

                             July 8, 1987

    Eonorable Chet Brooks                        opinion No. JM-740
    Chairman
    Eealth and Human Services Committee          Re: Selection of a county
    Texas State Senate                           auditor in Harris County,
    P. 0. Box 12068                              and related questions
    Austin, Texas   78711

    Dear Senator Brooks:

         You ask about the validity of the selection of a Harris County
    Auditor under article 1645a-10, V.T.C.S.. when the election is by less
    than two-thirds vote of the district judges having jurisdiction in the
    county. You state this problem has arisen when a number of the
    district judges have failed to attend a meeting scheduled for the
    selection of an auditor.
P
         The situation which gives rise   to your question is stated by you
    as follows:

              In December 1986, at a meeting called for the
              purpose of selecting the Harris County auditor, 23
              of the 59 district judges having jurisdiction in
              the county at that time net to consider the
              appointment. The vote at the meeting was 27 for
              and 2 against the reappointment of the acting
              county auditor. There were no other nominations
              for the position.

         You ask the following questions:

                 1. When selected by the method described
              above, can the county auditor lawfully assume the
              duties of the office without receiving a vote of
              two-thirds of the district judges in the county?

                 2. What is the method provided by law for
              selection of an auditor in a county with over 2
              million In population when no nominee receives the
              vote of two-thirds of that county’s judges?

                 3. Are meetings held pursuant to article
P             1645a-10 governed by the Open Meeting law of this
              state?

                                   p. 3443
Bonorable Chet Brooks - Page 2 (m-740)

     In December 1986 the method for selecting an auditor in counties
having a population of 2,000,OOO or more was controlled by article
1645a-10, V.T.C.S., which provided in relevant part:

         The office of county auditor shall be filled by
         the candidate receiving a two-thirds vote of the
         district judges having jurisdiction in the county
         at a meeting held for that purpose and the vote of
         a district judge shall not be counted unless he is
         present at the meeting.

V.T.C.S. art. 1645a-10. 81.

     In light of the fact that there was not a two-thirds vote of the
district judges having jurisdiction in the county you question whether
the nominee could assume the office of auditor for Harris County.
Under the scenario you have given it is our opinion that there was not
a valid selection of an auditor since two thirds of the district
judges in the county did not vote for the nominee. Thus, the person
selected could not lawfully assume the duties of the office. However,
we have been furnished with a copy of au order dated December 9, 1986
which reflects that at a meeting held on that date the nominee
received the votes of 54 of the judges of the district courts having
jurisdiction inI Harris County, clearly more than the required
two-thirds vote.

     1. The order of December 9. 1986 reflects:

          On the 9th day of December, 1986. the undersigned
     Judges of the District Courts having jurisdiction in Harris
     County, Texas, assembled pursuant to a special meeting
     called to elect a County Auditor for Harris County, Texas,
     under the provisions of Article 1645a-10 V.C.S. as amended.

          Upon motion of Judge Blanton, seconded by Judge
     Cartwright, duly put and carried, IT IS ORDERED that J. F.
     Flack be, and he is hereby, appointed as County Auditor of
     Earris County, Texas for a term beginning January 1, 1987
     and ending December 31, 1988, and until his successor is
     appointed and shall have qualified.      [salary provision
     omitted]

          The Clerk of the District Courts shall record this
     order in the Minutes of the District Courts and shall
     certify it to the Commissioners Court of Earris County,
     Texas, for recording in its Minutes and for such further
     orders as are required by law.

     The order is followed by a listing of the 59 district courts
having jurisdiction in Harris County with 54 of the judges affixing
their signatures above their respective courts.

                               p. 3444
    F
        Honorable Chet Brooks - Page 3 (JM-740)

             The present method for selecting an auditor in Harris County is
        addressed by Senate Bill No. 914, Acts 1987, 70th Leg., ch. 192,
        signed by Governor Clement8 on May 20. 1987 and contains the proviso
        “that this Act take effect and be in force from and after Its passage,
        and It is so enacted.” Article 1645a-10 was amended by Senate Bill
        No. 914 to read as follows (new language is underlined):

                     Sec. 1. In any county having a population of
                  2,000,000 or more, according to the last preceding
                  federal census, the district judges having juris-
                  diction in the county, shall nominate candidates
                  for the office of county auditor. Each judge may
                  nominate as many candidates as he wishes. -    The
                  district judges shall hold a meeting for the
                  purpose of electing a county auditor. The county
                  auditor shall be elected by a two-thirds vote of
                  the district judges who are present and voting at
                  that meeting, providing that at least a majority
                  of the district judges are present.

             You also ask if meetings held pursuant to article 1645a-10 are
        governed by the Open Meetings Act of this state. In Attorney General
        Opinion .I&340 (1985), it was noted that prior opinions had esta-
        blished that an entity will be covered by the Open Meetings Act if it
C
        is a “goveromental body” which holds “meetings” as those terms are
        defined in the act. Section 1 of article 6252-17, V.T.C.S., defines
        “meeting” and “governmental body.” It provides:

                     (a) ‘Meeting’ means any deliberation between.a
                  quorum of members of a governmental body at which
                  any public business or public policy over which
                  the governmental body has supervision or control
                  is discussed or considered, or at which any formal
                  action is taken. It shall not be construed that
                  the intent of this definition is to prohibit the
                  gathering of members of the governmental body in
                  numbers of a quorum or more for social functions
                  unrelated to the public business which Is con-
                  ducted by the body or for attendance of regional,
                  state, or national conventions or workshops as
                  long as no formal action is taken and there is no
                  deliberation of public business which will appear
                  on the agenda of the respective body.

                     (cl ‘Governmanta    body’ means any board,
                  commission. department, committee, or agency
                  within the executive or legislative department of
                  the state, which is under the direction of one or
                  more elected or appointed members; and every
                  Commissioners Court and city council in the state,
                  and every deliberative body having rule-making or
                  quasi-judicial power     and   classified as     a

                                      p. 3445
Eonorable Chet Brooks - Page 4     (JM-740)

          departmant, agency, or political subdivision of a
          county or city; and the board of trustees of every
          school district, and every county board of school
          trustees and county board of education; and the
          governing board     of   every  special district
          heretofore or hereafter created by law.

     A meeting of the district judges of Earris County for the purpose
of selecting a county auditor does not constitute a board, commission.
department. committee, or agency within the executive or legislative
department of the state nor is it a department, agency, or political
subdivision of a county or city or the governing board of a special
district created by law. See Attorney General Opinion MW-28 (1979).
It is our opinion that a Sting      of the district judges of Harris
County for the purpose of selecting a county auditor is not a meeting
of a "governmental body" as that term is defined in section l(c) of
article 6252-17 and does not come within the scope of the Open
Meetings Act.

                             SUMMARY

               Prior to the amendment of article 1645a-10,
          V.T.C.S., by the 70th Legislature, the office of
          county auditor of Harris County was filled by the
          candidate receivtng a two-thirds vote of all the
          district judges having jurisdiction in the county.
          The amendment to article 1645a-10 passed by the
          70th Legislature no longer requires a two-thirds
          vote of all the district judges of Harris County,
          but instead provides that the district judges
          having jurisdiction in Earris County shall elect
          the county auditor by a two-thirds vote of the
          district judges who are present and voting at the
          meeting, providing that at least a majority of the
          district judges are present at such meeting.
          Senate Bill 914. Acts 1987, 70th Leg., ch. 192,
          signed by Governor Clement8 on Hay 20, 1987
          (effective upon enactment). No alternate method
          is provided for selection of an auditor in Harris
          County.   A meeting of the. district judges of
          Harris County for the purpose of selecting a
          county auditor, is not a meeting of a "govern-
          mental body" as that term is defined in section
          l(c) of article 6252-17, V.T.C.S.. and does not
          come within the scope of the Open Meetings Act.

                                      /;jgb
                                           Attorney General of Texas

                                 p. 3446
Honorable Chet Brooks - Page 5 (JM-740)

MARY KELLER
Executive Assistant Attorney General

JUDGE ZOLLIE STBARLCl
Special Assistant Attorney General

RICK GILPIN
Chairman. Opinion Committee

Prepared by Tom G. Davis
Assistant Attorney General

                              p. 3447


J-A17023-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 MALGORZATA KROLIKOWSKI                  :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                   Appellant             :
                                         :
                                         :
              v.                         :
                                         :
                                         :
 ETHICON WOMENS’ HEALTH AND              :   No. 2025 EDA 2019
 UROLOGY A DIV. OF ETHICON, INC.,        :
 ETHICON, INC., JOHNSON &                :
 JOHNSON, GYNECARE, SECANT               :
 MEDICAL, SECANT MEDICAL INC.,           :
 PRODESCO, INC., AND SECANT              :
 MEDICAL LLC.,                           :

              Appeal from the Judgment Entered June 7, 2019
    In the Court of Common Pleas of Philadelphia County Civil Division at
                            No(s): 140102704

BEFORE: BOWES, J., McCAFFERY, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY McCAFFERY, J.:                      FILED AUGUST 11, 2020

      Malgorzata Krolikowski (Appellant) appeals from the judgment entered

in the Philadelphia County Court of Common Pleas in favor of Ethicon Womens’

Health and Urology a Div. of Ethicon, Inc., Ethicon, Inc., Johnson & Johnson,

Gynecare, Secant Medical, Secant Medical Inc., Prodesco, Inc., and Secant

Medical LLC (collectively Appellees). A jury found Appellant did not prove she

was entitled to damages for the negligent design, manufacture, and marketing

of the Gynecare TVT-Secur pelvic mesh implant (pelvic mesh implant). On

appeal, she contends the trial court abused its discretion when it permitted

one of her treating physicians to offer an expert opinion when the physician
J-A17023-20

was not qualified as an expert before or during trial. For the reasons below,

we affirm.

       The relevant facts underlying Appellant’s claim are as follows. In 2008,

at the age of 43, Appellant began experiencing stress urinary incontinence,

which is “mainly leakage at laughing, coughing and sneezing,” and urge-

related leakage. N.T., 4/5/19 (AM), at 17, 22; N.T., 4/8/19 (PM I), at 21.

She was referred to Dr. Matthew Fagan, a urogynecologist, who recommended

surgery. N.T., 4/5/19 (AM), at 25-26; Fagan’s Combined Deposition, 4/2/19,

at 6. On November 4, 2008, Appellant was implanted with the pelvic mesh

device, described as a “mid-urethral mesh sling.”           Fagan’s Combined

Deposition at 12, 22.            Dr. Fagan’s medical records for a follow-up

appointment, in February of 2009, stated that Appellant reported her “urgency

went away,” and she was “overall 80 percent better with stress urinary

incontinence.”1 Id. at 21.

       In 2010, Appellant began experiencing heavy bleeding due to fibroids,

and pain during intercourse (dyspareunia). N.T., 4/5/19 (AM), at 36-38, 66.

In 2011, she underwent a uterine embolization procedure to correct the

bleeding caused by her fibroids. Id. at 43-44, 52. After seeing an ad about

mesh implant complications in 2013, Appellant visited several doctors

complaining of continued urinary leakage, which she described as worse than
____________________________________________

1 At trial, Appellant testified that she did not recall telling Dr. Fagan she was
“80 percent better” because she was still having symptoms, and she “wasn’t
happy.” N.T., 4/5/19 (AM), at 35.

                                           -2-
J-A17023-20

it was before the 2008 implantation of the pelvic mesh device. Id. at 54, 58-

59, 65.   One of those doctors was urogynecologist Dr. Lily Arya, whom

Appellant saw twice, on July 20 and August 10, 2015. In 2015, Appellant also

began experiencing urinary leakage during intercourse. Id. at 47-48.

      On January 28, 2014, Appellant filed a complaint against Appellees,

asserting claims of strict products liability and negligence. The case proceeded

to a jury trial commencing in March of 2019. Both parties presented expert

witnesses, who offered opinions as to the causation. Appellant’s sole claim on

appeal concerns the videotaped deposition testimony of Dr. Arya. Dr. Arya

was not designated as an expert witness, but rather, testified as one of

Appellant’s treating physicians.   After Dr. Arya reviewed her findings and

recommendations for Appellant based upon her medical notes, the following

exchange occurred:

      [Appellees’ counsel]: And so at this point in your assessment of
      [Appellant], did you feel that she was experiencing any
      complications associated with her sling?

      [Dr. Arya]: So the sling was not working. That’s a failure, but I
      wouldn’t call that a complication. I call — the term that I use is
      — recurrent stress urinary incontinence. Any surgical procedure
      may not work.

           So this is a failure of her sling.       I wouldn’t call it a
      complication of her sling.

Arya’s Combined Deposition, 4/2/19, at 57.

      Before the videotaped deposition was played for the jury, Appellant

objected to this exchange as “improper expert opinion testimony,” noting

“[t]hese treating physicians are called to give opinions that are specific to the

                                      -3-
J-A17023-20

client and their care and treatment of them, and this extends beyond that.”

N.T., 3/22/19, at 103, 105. Appellant’s argument continued as follows:

          [Appellant’s counsel]: . . . The problem that I have is where
     we get into this “failure” versus “complication” thing. Like those
     words are very important words in this case. And what the jury
     understands a failure to mean versus what the jury understands
     complication to mean, it’s going to go into their determination of
     whether or not this product was defective.

           THE COURT: Well, I mean, so you have the mesh implanted
     and now you’re incontinent and you weren’t before, that’s a
     complication. You have the mesh implanted in order to resolve
     incontinence and it doesn’t work, that’s a failure.

           What’s so difficult about — am I wrong about that?

           [Appellant’s counsel]: I don’t want to say that you’re wrong,
     Your Honor, but I think it’s a little more complicated than that
     actually, because they put the sling in to treat stress urinary
     incontinence.

           THE COURT: Okay.

            [Appellant’s counsel]: So when a woman leaks, you put the
     sling in to treat it. If it doesn’t work, yes, you could call that a
     failure.

           THE COURT: It failed.

           [Appellant’s counsel]: You could call that a failure, but the
     problem with calling it a failure is the defense is going to get up
     and argue to the jury — as it is their right to do — that sometimes
     medical devices just don’t work and that just happens and that
     doesn’t mean that the device is defective.

           [Appellees’ counsel]: That’s right.

           [Appellant’s counsel]: But we’re arguing that the failure
     rates that they knew about and that they were seeing, the
     extremely high failure rates as soon as they put the device on the
     market in this case, failure equals defect. Because if it fails in
     every single woman that you put it in —

                                    -4-
J-A17023-20

             THE COURT: You’re just going to have to argue that to the
       jury. I overrule the objection.

              [Appellant’s counsel]: Fair enough, Your Honor.

            Would Your Honor just consider redacting that one
       sentence: “Any surgical procedure may not work,” because it’s
       not specific to [Appellant] and it’s an overly broad statement
       about surgical procedures not working and —

            THE COURT: No. I think that explains the meaning of the
       word “failure[.]” . . .

Id. at 109-11.

       The jury trial lasted more than three weeks. On April 17, 2019, the jury

returned a verdict for Appellees. Specifically, the jury concluded Appellant

proved Appellees “negligently designed, marketed, or sold” the device, but

that “the negligent design, marketing or sale” of the device was not “a factual

cause of her injuries[.]” Verdict Sheet, 4/17/19, at Questions 4, 5.2 Appellant

filed a timely post-trial motion, which was denied following argument on June

4, 2019. That same day, the trial court entered judgment on the verdict. This

timely appeal followed.3

       Appellant raises one issue on appeal:

       Did the trial court abuse its discretion by permitting Dr. Arya, one
       of [Appellant’s] treating physicians, to offer an expert opinion on
       causation when (a) [Appellees] did not designate Dr. Arya as an
____________________________________________

2 The jury also concluded Appellant failed to prove the pelvic mesh device
“contained a design defect that rendered it unreasonably dangerous.” Verdict
Sheet at Question 1.

3On July 11, 2019, the trial court ordered Appellant to file a concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant
complied with the court’s directive, and filed a concise statement on July 23,
2019. Thereafter, the trial court filed an opinion on August 6, 2019.

                                           -5-
J-A17023-20

      expert witness; (b) [Appellees] did not qualify Dr. Arya as an
      expert witness during trial; and (c) Dr. Arya had no recollection of
      [Appellant] as a patient and expressed her causation opinion for
      the first time in the deposition played to the jury?

Appellant’s Brief at 3.

      We review a trial court’s evidentiary rulings, including the admission or

exclusion of testimony from an expert witness, for an abuse of discretion.

Crespo v. Hughes, 167 A.3d 168, 181 (Pa. Super. 2017) (citations omitted).

      An abuse of discretion may not be found simply because an
      appellate court might have reached a different conclusion than the
      trial court; rather, to constitute an abuse of discretion, the trial
      court ruling must be the product of “manifest unreasonableness,
      or partiality, prejudice, bias, or ill-will, or such lack of support so
      as to be clearly erroneous.”

Polett v. Public Communications, Inc., 126 A.3d 895, 924 (Pa. 2015)

(citations omitted). Moreover,

      an appellate court is not to make a first-hand assessment of that
      evidence as if it were the trial court, but rather is to confine its
      review to the question of whether, in light of that evidence, the
      trial court’s ruling was manifest[ly] unreasonable, or so lacking in
      support as to be “clearly erroneous.”

Id. at 924-25. Furthermore, even if we determine the trial court’s evidentiary

ruling was an abuse of discretion, the error “does not warrant a new trial

unless it was ‘harmful or prejudicial to the complaining party.’” Flenke v.

Huntington, 111 A.3d 1197, 1200 (Pa. Super. 2015) (citation omitted).

      Pennsylvania Rule of Civil Procedure 4003.5 requires litigants to disclose

the identity and opinions of their proposed expert witnesses to the other party

during discovery.   See Pa.R.C.P. 4003.5.       The Rule further provides “[a]n

expert witness whose identity is not disclosed in compliance with . . . this rule

                                       -6-
J-A17023-20

shall not be permitted to testify on behalf of the defaulting party at the trial

of the action.”   Pa.R.C.P. 4003.5(b).     “It is clear that the purpose of Rule

4003.5 is to prevent surprise.” Miller v. Brass Rail Tavern, 664 A.2d 525,

530 n.3 (Pa. 1995).

       Moreover, when a litigant presents an expert witness at trial, they must

first establish the expert’s qualifications pursuant to the Pennsylvania Rules of

Evidence. See Pa.R.E. 702(a)-(c) (to qualify an expert witness, litigant must

establish “(a) the expert’s scientific, technical, or other specialized knowledge

is beyond that possessed by the average layperson; (b) [that] knowledge will

help the trier of fact to understand the evidence or to determine a fact in

issue; and (c) the expert’s methodology is generally accepted in the relevant

field”).   However, pursuant to Pennsylvania Rule of Evidence 701, a lay

witness may offer “testimony in the form of an opinion” if the testimony is:

       (a) rationally based on the witness’s perception;

       (b) helpful to clearly understanding the witness’s testimony or to
       determining a fact in issue; and

       (c) not based on scientific, technical, or other specialized
       knowledge within the scope of Rule 702.

Pa.R.E. 701(a)-(c).

       The dichotomy of these rules comes into play where, as here, a plaintiff’s

treating physician, who is not designated or qualified as an expert witness,

provides an opinion concerning the cause of the plaintiff’s injuries. In this

situation, critical questions arise as to whether (1) the physician’s opinion “was

‘acquired or developed in anticipation of litigation or for trial’” pursuant to Rule

                                       -7-
J-A17023-20

4003.5, and (2) the opinion is “rationally based on the [physician’s]

perceptions and helpful to a clear understanding of [their] testimony”

pursuant to Rule 701. Polett, 126 A.3d at 924 (citation omitted); Crespo,

167 A.3d at 182 (citations omitted).

         On appeal, Appellant contends the trial court abused its discretion when

it permitted Dr. Arya to provide “an expert opinion on the cause of

[Appellant’s] urinary and sexual dysfunction,” when Dr. Arya was neither

identified as an expert witness before trial, nor qualified as an expert during

trial.   Appellant’s Brief at 25, 26-27, 29.   Preliminarily, however, we must

address Appellees’ claim that this argument is waived because it presents “an

entirely different theory than the one [Appellant] advanced pre-trial[.]”

Appellees’ Brief at 28.      See Pa.R.E. 103(a)(1)(A)-(B) (in order to raise

evidentiary error on appeal, during trial, affected party must “make[ ] a timely

objection . . . and state[ ] the specific ground[.]”); McManamon v. Washko,

906 A.2d 1259, 1274 (Pa. Super. 2006) (“In order to preserve an issue for

appellate review, a party must make a timely and specific objection at the

appropriate stage of the proceedings before the trial court.”) (citation

omitted).

         Specifically, Appellees contend the objection Appellant raised pre-trial

“was that Dr. Arya offered an impermissible expert opinion on the issue of

defect, because her theory of the case at the time was that ‘failure equals

defect.’” Appellees’ Brief at 28. However, they claim the issue on appeal is

                                       -8-
J-A17023-20

different, as Appellant now asserts Dr. Arya offered an improper opinion “on

the cause of [Appellant’s] injuries.” Id. (citation omitted).

      In her reply brief, Appellant insists she did not waive her present claim.

Appellant’s Reply Brief at 1. We agree. Before raising the objection to Dr.

Arya’s deposition testimony, Appellant’s counsel stated: “Sticking with the

same category of objections, the improper expert opinion testimony, I’m

moving on to Dr. Arya’s deposition.”     N.T., 3/22/19 (P.M. session), at 103

(emphasis supplied). Furthermore, counsel’s argument focused solely on the

causation question and answer at issue herein. See id. at 103-11. While we

agree counsel did not reference Pa.R.C.P. 4003.5 or Pa.R.E. 701, we conclude

the objection sufficiently preserved the issue on appeal. Thus, we decline to

find waiver.

      Turning to Appellant’s argument, she insists Dr. Arya’s testimony

concerning the causation of her injuries constituted improper expert

testimony.     Because the testimony “implicated [Dr. Arya’s] expertise as a

urogynecologist to explain the cause of [Appellant’s] urinary conditions, not

her factual perception of [Appellant],” Appellant insists the testimony cannot

be considered a lay opinion pursuant to Rule 701.         Id. at 26.    Indeed,

Appellant asserts Dr. Arya’s opinion testimony should have been excluded for

the following three reasons:    (1) Dr. Arya was not identified as an expert

before trial, and did not provide an expert report pursuant to Pa.R.C.P.

4003.5; (2) Appellees did not attempt to qualify Dr. Arya as an expert witness

at trial pursuant to Pa.R.E. 702; and (3) Dr. Arya’s opinion on causation was

                                     -9-
J-A17023-20

“not formed during her care and treatment of” Appellant. Id. at 26-27, 29.

Appellant also argues the admission of this improper testimony prejudiced

her.   She maintains Appellees “significantly emphasized Dr. Arya’s opinion

testimony” during closing arguments, and “[i]n the end, the jury decided the

case on exactly the point where Dr. Arya’s expert opinion was directed” —

that Appellees’ negligence did not cause Appellant’s injuries. Id. at 30-31.

Accordingly, Appellant insists she is entitled to a new trial.

       The trial court concluded, however, that “Dr. Arya’s testimony was

admissible both as opinion or non-opinion testimony.” Trial Ct. Op., 8/6/19,

at 3. First, the court noted it was “hard-pressed to believe . . . Dr. Arya’s

statement is an opinion at all, let alone an inadmissible expert opinion.” Id.

at 5. Focusing on Dr. Arya’s comment that “failure is not a complication,” the

trial court found the statement “does not require any specialized expert

knowledge,” and was merely a “common sense” distinction. Id. Indeed, the

court commented that one need not be “an expert to tell the difference

between a failure and a complication.” Id.

       Appellant maintains this explanation “misses the mark.”     Appellant’s

Brief at 33. She argues that, when considered in context, Dr. Arya’s answer

constituted an opinion as to the cause of Appellant’s injuries. Id. We agree.

As Appellant emphasizes, the question posed to Dr. Arya was: “And so at this

point in your assessment of [Appellant], did you feel that she was experiencing

any complications associated with her sling?” Arya Combined Deposition at

57. That question clearly called for Dr. Arya’s assessment as to whether the

                                      - 10 -
J-A17023-20

sling “caused” Appellant’s injuries. This is confirmed by Dr. Arya’s answer,

“[T]he sling was not working.     That’s a failure, but I wouldn’t call that a

complication.” Id. Accordingly, we agree that, considered in context, the

question posed to Dr. Arya, as well as her response, called for her opinion

regarding the cause of Appellant’s injuries.

      Nevertheless, the court further found that even if Dr. Arya’s testimony

were an opinion, it was admissible as non-expert, lay opinion testimony. The

court opined:

      The pivotal question the Court must ask is whether Dr. Arya’s
      statement was developed in anticipation of litigation, or rather
      during her course of care and treatment of [Appellant]. Dr. Arya’s
      testimony was based entirely on her medical notes taken during
      her care for [Appellant]. In discussing Dr. Arya’s testimony,
      [Appellant] defeated her own argument when she stated during
      [her] motion in limine to exclude the relevant testimony, “So,
      again, I concede that we’re talking about care and treatment of
      [Appellant].” N.T. 3/22/19 PM, [at] 104-105. Further, the
      question specifically posed to Dr. Arya that brought about the
      testimony at issue, was: “At this point in your assessment of
      [Appellant], did you feel that she was experiencing any
      complications associated with her sling?”      Arya [Combined]
      Deposition [ ] at 57. The very question situates the testimony as
      part of Dr. Arya’s course of treatment, rather than a made-for-
      litigation opinion. This opinion was known and clearly formed in
      the course and treatment of [Appellant], and therefore it is
      admissible under Rule 4003.5 and [Polett].

             Under Rule 701, Dr. Arya was not testifying as an expert as
      she was not qualified before the Court, but was testifying as a
      treating physician. Dr. Arya’s testimony was rationally based on
      her perception during her care and treatment of [Appellant]; the
      opinion was helpful to determine a fact in issue; and the testimony
      was not based on scientific, technical, or other specialized
      knowledge. Therefore, the testimony was admissible lay opinion.

Trial Ct. Op. at 6-7.

                                    - 11 -
J-A17023-20

      Upon our review of the record and the relevant case law, we detect no

abuse of discretion in the trial court’s decision to admit the testimony at issue.

See Crespo, 167 A.3d at 181. The Pennsylvania Supreme Court’s decision in

Polett is instructive. In that case, the plaintiff underwent successful double

knee replacement surgery in June of 2006. Polett, 126 A.3d at 899. Two

months later, the plaintiff agreed to appear in a promotional video for the

manufacturer of the artificial knees. Id. at 900. On the day of the shoot, the

plaintiff was first filmed being examined by her physician. Id. Later that day,

she learned the crew intended to film her riding a stationary bike.           Id.

Although she was concerned about riding the bike, the plaintiff assumed the

film crew had consulted with her physician, so she proceeded to do so. Id.

The plaintiff began to experience “discomfort and pain” as she was driving

home after the film shoot. Id. Over time, her condition worsened to the point

where the “tendons around [her kneecap] pulled apart causing her to, on

occasion, lose her balance and fall.” Id. at 901. The plaintiff subsequently

underwent additional surgeries, which left her with “diminished mobility.” Id.

at 901-02.

      The plaintiff filed an action against the manufacturer of her artificial

knees and the film crew of the promotional video, asserting they “were

negligent in having her ride the exercise bike during the filming of the video

without first determining whether she was medically cleared to do so.” Polett,

126 A.3d at 903. Prior to trial, the defendants presented a motion in limine

seeking to preclude the plaintiff’s treating physician from offering his opinion

                                     - 12 -
J-A17023-20

as to the cause of the plaintiff’s injuries because the physician did not prepare

an expert report pursuant to Pa.R.C.P. 4003.5. Id. at 903-04. The court

denied the motion “on the grounds that [the physician] was not a witness who

was retained in anticipation of litigation; rather, in the court’s view, [the

physician] formed his opinions as to causation . . . during the course of his

treatment relationship with” the plaintiff. Id. at 904. The jury returned a

$26.6 million dollar verdict for the plaintiff, although it did find her 30%

comparatively negligent.    Id. at 906.    On appeal, this Court vacated the

judgment and granted a new trial, concluding, inter alia, that the trial court

erred in permitting the physician to “testify as an expert witness.” Id.

      The Supreme Court disagreed. In considering whether the testimony

was proper, the Court explained:

      [T]he [plaintiff] did not hire or retain [the physician] as an expert
      for the purpose of rendering an expert opinion at trial; thus, the
      pivotal question under Rule 4003.5, as contested by the parties,
      was whether his opinion as to causation of [the plaintiff’s]
      injuries was “acquired or developed in anticipation of
      litigation or for trial.”

Polett, 126 A.3d at 924 (emphases added), quoting Pa.R.C.P. 4003.5. In

making this determination, the Supreme Court recognized that “the point in

time at which [the physician] first came to his conclusion that the bicycle ride

during the exercise video was the triggering event which caused [the

plaintiff’s] medical condition . . . which, in turn, led to [her] subsequent

medical problems, is dispositive of this question.” Id.

                                     - 13 -
J-A17023-20

      The Supreme Court emphasized that the trial court found that the

physician’s treatment notes from 2006 reflected his determination, at that

time, that the stationary bike ride caused the plaintiff’s subsequent injuries.

Polett, 126 A.3d at 924.     Furthermore, the Supreme Court concluded the

Superior Court panel erred when it conducted its own de novo interpretation

of the treatment notes, determining the notes reflected “only ‘a temporal

connection’” between the bike ride and the plaintiff’s injuries. Id. (citation

omitted). Indeed, the Supreme Court held:

      [T]he trial court’s understanding of the meaning of those notes,
      as reflecting [the physician’s] contemporaneous impression as to
      the cause of [the plaintiff’s] medical difficulties, was neither
      manifestly unreasonable nor clearly erroneous, but, rather, was a
      rational interpretation supported by the evidence of record.

Id. at 925. Furthermore, the Court rejected the defendants’ claim that they

were “unfairly surprised” by the physician’s testimony — the defendants “had

full access to [the physician’s] treatment notes, and critically, had participated

in his deposition.” Id. at 927.

      Here, the trial court determined that Dr. Arya’s “opinion” — that

Appellant’s injuries were not attributable to complications from her pelvic

mesh implant — was formed during the course of her treatment of Appellant,

and not in anticipation of litigation. Trial Ct. Op. at 6. Indeed, the question

posed to Dr. Arya, which prompted the objectionable response, was “[A]t this

point in your assessment of [Appellant], did you feel that she was

experiencing any complications associated with her sling?” Arya Combined

Deposition at 57 (emphasis added).       As the trial court opined, “[t]he very

                                     - 14 -
J-A17023-20

question situates the testimony as part of Dr. Arya’s course of treatment,

rather than a made-for-litigation opinion.”    Trial Ct. Op. at 6.     Like the

Supreme Court in Polett, we conclude the trial court’s interpretation of the

context of Dr. Arya’s opinion testimony, “was neither unreasonable nor clearly

erroneous[.]” See Polett, 126 A.3d at 925.

      Appellant insists, however, that Polett is distinguishable from the case

sub judice because in Polett: (1) the objecting party was notified the treating

physician would be called as both a fact witness and an expert witness at

trial (despite not having provided an expert report), and (2) the physician’s

“expert opinion [was] developed during treatment and memorialized in the

plaintiff’s medical records.”   Appellant’s Brief at 14-15.   Here, Appellant

maintains, Appellees never identified Dr. Arya as an expert to the jury so that

“the jury had no basis for distinguishing Dr. Arya’s expert testimony from her

fact testimony.” Id. at 29. Moreover, she argues Dr. Arya’s treatment notes

contained no suggestion of a causal relationship, nor lack thereof, between

Appellant’s medical issues and her pelvic implant.     Id. at 27-28.    Rather,

Appellant maintains Dr. Arya’s testimony revealed the doctor did not recall

Appellant as a patient, and was unaware of much of her medical history. Id.

Nevertheless, Appellant contends “Dr. Arya expressed a significant and

unqualified opinion that [the pelvic mesh device] had not caused [Appellant]

any complications, [but] has simply failed, which was a surgically and

medically acceptable outcome.” Id. at 28.

                                    - 15 -
J-A17023-20

      Appellant’s argument fails for several reasons. First, the Polett Court

placed no emphasis on the fact that the treating physician was qualified as an

expert at trial.   Rather, the Court focused on the fact that the physician’s

causation opinion was formed during the course of treatment, rather than in

anticipation of litigation. See Polett, 126 A.3d at 924-26. See also Crespo,

167 A.3d at 182 (concluding treating physician was “qualified to comment as

a fact witness on causation because his testimony was based on his

observations, diagnosis, and medical judgment at the time he rendered

treatment to [the plaintiff];” question posed to physician asked him to clarify

“his own notes”).

      We also disagree with Appellant’s contention that Dr. Arya’s “opinion”

was not developed during her treatment of Appellant and memorialized in her

medical notes.     As noted above, the question posed to Dr. Arya explicitly

directed her to state if — at time she completed her assessment of Appellant

— she believed Appellant was experiencing complications as a result of her

pelvic mesh implant.      See Arya’s Combined Deposition at 57.           Thus, her

opinion was necessarily formed during her treatment of Appellant. Nor do we

find it significant that Dr. Arya did not specifically recall Appellant as a patient.

The physician’s treatment notes from Appellant’s second visit on August 10,

2015, indicated, inter alia:

      Urge and stress incontinence
      Prior failed mini-sling by Dr. Fagan
      Not keen on repeat sling for now

                                       - 16 -
J-A17023-20

Arya’s Progress Notes, 8/10/15 (emphasis added). Therefore, the fact that

Dr. Arya believed Appellant’s continuing medical issues were the result of a

“failed” implant rather than complications resulting from the implant can be

reasonably deduced from her medical records.            Appellant’s additional

argument that Dr. Arya was unaware of the “significant aggravation of her

urinary symptoms after” the implant, goes to the weight of Dr. Arya’s

testimony, not its admissibility. See Appellant’s Brief at 27.

      Lastly, focusing on the third prong of Rule 701, Appellant argues Dr.

Arya’s testimony was improper because “[u]nder Pennsylvania law, ‘[i]t is

generally accepted that the cause and effect of a physical condition lies in a

field of knowledge in which only a medical expert can give a competent

opinion.’”   Appellant’s Brief at 25, quoting Risperdal Litigation W.C. v.

Janssen Pharmaceuticals, Inc., 174 A.3d 1110, 1121 (Pa. Super. 2017).

Because Dr. Arya’s “causation testimony implicated her expertise as a

urogynecologist to explain the cause of [Appellant’s] urinary conditions, not

her factual perception of [Appellant,]” Appellant insists the testimony “cannot

be understood as lay opinion[.]” Id. at 26. Again, we disagree.

      In W.C., the minor plaintiff was prescribed Risperdal for the treatment

of attention deficit disorder, and later developed “unexplained weight gain and

gynecomastia,” which is defined as “excessive development of the breast in

the male.” W.C., 174 A.3d at 1114 & n.3. The minor plaintiff filed a complaint

against the drug manufacturer as part of a mass tort program. Id. at 114 &

n.4. At trial, over the minor plaintiff’s objection, the trial court permitted a

                                     - 17 -
J-A17023-20

physician assistant, who had treated the plaintiff and was not identified as an

expert witness before or during trial, to offer the following opinion on the

cause of the minor plaintiff’s chest growth:

      [Manufacturer’s Counsel]: And all of those weights we just
      reviewed were after Risperdal use had discontinued, correct?

      [Physician Assistant]: Yes, correct.

      [Manufacturer’s Counsel: D]o you plan to offer any opinion as to
      — if indeed [the minor plaintiff] has chest growth, do you plan
      to offer any opinion as to the cause of that chest growth?

      [Physician Assistant]: The extreme weight gain, I would say.

      [Manufacturer’s Counsel]: And what is the basis for that opinion?

      [Physician’s Assistant]: Because he hasn’t been on Risperdal
      since, we said, '07, so if he was taken off the Risperdal, the
      prolactin would have returned to normal.

Id. at 1121 (citation, footnote, and some emphasis omitted).         The jury

returned a verdict for the manufacturer, concluding that although the

manufacturer was negligent in failing to provide an adequate warning

concerning the risk of gynecomastia, the manufacturer’s negligence did not

cause the minor plaintiff’s gynecomastia. Id. at 1116.

      On appeal, this Court concluded that the physician assistant’s opinion

testimony was improper:

      [The physician assistant] was required to draw upon specialized
      medical knowledge concerning causation in order to opine that
      [the minor plaintiff’s] breast growth was caused by weight gain.
      The effect of Risperdal on a hormone such as prolactin is clearly a
      subject that requires specialized knowledge. This testimony
      clearly required the use of “scientific, technical, or other
      specialized knowledge within the scope of Rule 702.” Pa.R.E. 701.
      Thus, we conclude that the trial court erred in determining that

                                    - 18 -
J-A17023-20

      [the physician assistant’s] testimony did not constitute expert
      testimony.

W.C., 174 A.3d at 1122. Appellant asserts the same is true here since Dr.

Arya’s opinion — that Appellant’s injuries were caused by a failure of the

implant rather than complications from the implant — “required her to rely on

her specialized knowledge beyond that possessed by the average layperson.”

Appellant’s Brief at 26.

      However, Appellant fails to recognize a key distinction between W.C.

and the case sub judice. The causation opinion in W.C. did not arise during

the physician assistant’s treatment of the minor plaintiff, nor was it

memorialized in her treatment notes. Indeed, the question posed to her asked

if she “plan[ned] to offer any opinion as to the cause of [the] chest

growth.” W.C., 174 A.3d at 1121 (some emphasis omitted). That question,

and the witness’s response, demonstrated the opinion was “acquired or

developed in anticipation of litigation for trial,” rather than “based upon [her]

observations, diagnosis, and medical judgment” at the time she treated the

minor plaintiff.   See Pa.R.C.P. 4003.5(a); Crespo, 167 A.3d at 182.

Accordingly, we find W.C. distinguishable on its facts.

      Therefore, because we conclude the trial court did not abuse its

discretion when it determined Dr. Arya’s testimony constituted permissible lay

opinion testimony, we affirm the judgment in favor of Appellees.

      Judgment affirmed.

                                     - 19 -
J-A17023-20

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/11/2020

                          - 20 -


629 P.2d 1275 (1981)
Kenneth Eugene LUMAN, and James Haskell Luman, Appellants,
v.
The STATE of Oklahoma, Appellee.
Nos. F-78-624, F-78-625.
Court of Criminal Appeals of Oklahoma.
June 8, 1981.
James W. Fransein, Tulsa, for appellants.
Jan Eric Cartwright, Atty. Gen., Michael Avant-Pybas, Asst. Atty. Gen., State of Oklahoma, Oklahoma City, for appellee.

*1276 MEMORANDUM OPINION
CORNISH, Judge:
The appellants, James Haskell Luman and Kenneth Eugene Luman, were convicted of Unlawful Cultivation of Marijuana and Unlawful Possession of Marijuana With Intent To Distribute in the District Court of LeFlore County.
Sheriff Kirkland, of LeFlore County, received an anonymous telephone call stating that a substance believed to be marijuana, surrounded by a cornfield, was growing on the Luman place. On September 3, 1977, the sheriff and his deputy drove to the farm. Approximately three hundred feet away from the cornfield, the sheriff observed what he believed to be marijuana protruding above the corn. Before departing, he went through a barbed wire fence and two gates to take a sample plant.
On September 22, 1977, the sheriff secured a warrant to search the Luman property. Execution of the warrant netted several large bags of marijuana and over two thousand marijuana plants ranging from three to twelve feet in height. A later search pursuant to a warrant issued September 25, 1977, netted six barrels, two chest freezers, and several paper bags of marijuana from a structure beside the barn. The processed marijuana was later determined to be about six to seven hundred pounds. In addition, eight to ten large dump trucks full of cultivated marijuana plants were hauled away.
It is first argued that the initial intrusion onto the appellants' land was in violation of the Fourth Amendment's prohibition against an unreasonable search and seizure. The appellants' second proposition also involves a Fourth Amendment question concerning whether the cornfield was within the curtilage, therefore, the two arguments will be considered together.
The curtilage area, historically considered as an extension of a man's house, has Fourth Amendment protection against unreasonable search and seizure. Curtilage includes all outbuildings used in connection with a residence, such as garages, sheds, barns, yards and lots connected with and in close vicinity of the residence, but open pasture and wooded area beyond fenced residential property does not constitute part of curtilage, Hunsucker v. State, 475 P.2d 618 (Okl.Cr.App. 1970). Interpreting Oklahoma law, the Tenth Circuit Court of Appeals reported these factors to determine the curtilage area: (1) proximity or annexation to the dwelling; (2) inclusion in the general enclosure surrounding the dwelling; and (3) use and enjoyment as an adjunct to the domestic economy of the family. Care v. United States, 231 F.2d 22 (10th Cir.1956).
Review of the record and the law indicates that the site of the sheriff's seizure of a sample plant from the four to five acre patch of marijuana was not curtilage. Therefore, the search and seizure was not unreasonable. Since the site of the search and seizure was outside the curtilage, the open field doctrine[1] applies, and no search warrant was required for the sheriff's initial entry.
Complaint is next made that the search warrant and the affidavit upon which it was based were insufficient to justify the second search because of two "flaws" in the affidavit: (1) the anonymous source of information *1277 was insufficient to obtain a warrant; and (2) erroneous information was alleged in the affidavit, namely, that Lena Luman owned the property with J.H. Luman, while in fact she had been dead for six years.
While Aguilar v. State of Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), requires more than an anonymous tip to obtain a search warrant, its requirements for reliability and conclusionary validity in the affidavit were met by the sheriff's personal observation of plants he believed to be marijuana growing in the cornfield. Therefore, there was sufficient basis for the magistrate to make a factual determination that probable cause existed to issue a search warrant, and this argument is without merit. The erroneous inclusion of Lena Luman as co-owner of the property was not a fatal flaw. Stevens v. State, 540 P.2d 1199 (Okl.Cr.App. 1975).
The final proposition of error is that the punishment was excessive. We find this argument to have merit only with respect to the fines imposed. Under the Uniform Controlled Dangerous Substances Act, 63 O.S.Supp. 1980, § 2-101, et seq., the applicable penalty section, 2-401 B.2, authorizes punishment up to ten (10) years' imprisonment and a maximum fine of five thousand dollars ($5,000) for the cultivation (manufacture) of marijuana. Therefore, in Case No. CRF-77-167 for Unlawful Cultivation of Marijuana, ten (10) years' imprisonment each for James and Kenneth Luman was proper, but both the Ten Thousand Dollar ($10,000) fine for James and the Fifteen Thousand Dollar ($15,000) fine for Kenneth exceed the statutory maximum of five thousand dollars ($5,000). Therefore, the fine portion of the sentences should be reduced to Five Thousand Dollars ($5,000) each. The judgments and sentences are therefore AFFIRMED AS MODIFIED.
BRETT, P.J., and BUSSEY, J., concur.
NOTES
[1]  Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924).