HomeMy WebLinkAbout2003-2197 Civil
DEBRA A. BENNER, : IN THE COURT OF COMMON PLEAS OF
Plaintiff : CUMBERLAND COUNTY, PENNSYLVANIA
:
v. : CIVIL ACTION-LAW
:
CHRISTOPHER R. :
VILLARONGA and :
NILES M. MILLER, :
Defendants : NO. 03-2197 CIVIL TERM
IN RE: OPINION PURSUANT TO PA. R.A.P. 1925
OLER, J., May 22, 2007.
In this “limited tort” case, a jury found that Plaintiff’s injuries resulting
from a motor vehicle accident did not rise to the level of a “serious impairment of
a body function,” and awarded damages in her favor and against Defendant
1
Christopher R. Villaronga in the amount of $10,000.00 for economic losses.
From a denial of Plaintiff’s motion for post-trial relief, Plaintiff has appealed to
2
the Pennsylvania Superior Court.
The bases of Plaintiff’s appeal have been expressed in a statement of
matters complained of on appeal as follows:
1. Whether the trial court’s denial of Plaintiff’s motions for post-trial
relief with respect to jury deliberations was supported by applicable law.
Specifically, Plaintiff moved the court for a hearing regarding jury
deliberations, averring that after the jury returned its verdict and the court
dismissed the jury, Plaintiff’s counsel had a discussion in the courtroom
with one of the jurors (an older female juror with gray hair whom
Plaintiff’s counsel believed was juror [number and name deleted]). The
juror discussed the bases of the verdict and specifically stated it was her
belief, as well as the belief of other jurors, is that money cannot help
Plaintiff and that what Plaintiff really needs more faith. The juror then
pulled from her pocketbook and handed Plaintiff’s counsel a book titled
“The Great Physician” by Lillian B. Yeomans, M.D.. The book appeared
to be based upon the principles of Christian Science. The juror stated she
had been reading the book and believed it would help Plaintiff. In light of
1
N.T. 369-71, Trial (hereinafter N.T. __). Defendant Niles M. Miller was found not to have been
negligent. N.T. 369.
2
Notice of Appeal, filed March 20, 2007. The appealability of a ruling on a motion for post-trial
relief is beyond the scope of this opinion. But see Dominick v. Hanson, 753 A.2d 824, 825 n.1
(Pa. Super. Ct. 2000).
this discussion, it appeared that at least some of the jurors violated their
oath to base their verdict solely on the factual evidence presented at trial
and the court’s instructions regarding the law. The court was permitted to
order a hearing and take post-trial testimony of extraneous influences
which might have affected (prejudiced) the jury during their deliberations.
Pittsburgh National Bank v. Mutual Life Ins. Co. of New York, 425 A.2d
383, 386 (Pa. 1981), citing Commonwealth v. Sero, 387 A.2d 63, 67 (Pa.
1978). At such a hearing, the discharged jurors may testify to the
existence of outside influences during their deliberations but may not
testify about the effect these outside influences had upon the jurors in
reaching a decision. Commonwealth v. Zlatovich, 269 A.2d 469, 473 (Pa.
1970). Nevertheless, the trial court denied Plaintiff’s motion for a hearing
regarding jury deliberations and further denied Plaintiff’s motion for a new
trial based upon alleged juror misconduct.
2. Whether the trial court’s denial of Plaintiff’s motion for post-trial
relief requesting a new trial based on the court allowing (over Plaintiff’s
objection) evidence of Plaintiff’s pre-trial settlement with Defendant, Niles
M. Miller, was supported by applicable law. 11/7/06 N.T. 120-125.
3. Whether the trial court’s denial of Plaintiff’s motion for post-trial
relief requesting a new trial based on the court permitting (over Plaintiff’s
objection) Jean L. Santo, M.D., to be cross-examined about the report of
Stephen K. Powers, M.D., in which Dr. Powers stated he was at a loss to
explain Plaintiff’s continuing symptoms and in which Dr. Powers did not
set forth any opinions which contradicted those of Dr. Santo, was
supported by applicable law. 9/7/06 Dr. Santo N.T. 31-34; 11/8/06 N.T.
215-216.
4. Whether the trial court’s denial of Plaintiff’s motion for post-trial
relief requesting a new trial based on the court permitting (over Plaintiff’s
objection) James P. Argires, M.D., to be cross-examined about the report
of Stephen K. Powers, M.D., in which Dr. Powers stated he was at a loss
to explain Plaintiff’s continuing symptoms and in which Dr. Powers did
not set forth any opinions which contradicted those of Dr. Argires, was
supported by applicable law. 9/7/06 Dr. Argires N.T. 33-35; 11/9/06 N.T.
3
269-270.
This opinion in support of the court’s denial of Plaintiff’s motion for post-
trial relief is written pursuant to Pennsylvania Rule of Appellate Procedure
1925(a).
STATEMENT OF FACTS
456
On Saturday, June 16, 2001, at approximately 8:30 p.m., Plaintiff Debra
R. Benner was a passenger in a van being operated by Defendant Niles M. Miller
3
Plaintiff’s Statement of Matters Complained of on Appeal, filed April 4, 2007.
4
N.T. 43.
2
7
on South Sporting Hill Road, in Hampden Township, Cumberland County,
Pennsylvania. While preparing to make a left turn into a shopping center, the van
was contacted from behind by a vehicle driven by Defendant Christopher R.
8
Villaronga.
On May 9, 2003, Plaintiff commenced the present action by filing a
negligence complaint for personal injuries, naming both Miller and Villaronga as
9
Defendants. The negligence of Defendant Miller was alleged to have consisted of
the following:
(a) failing to use due care under the circumstances then present in that
he failed to move his vehicle into the center lane which was available for
persons turning left;
(b) failing to give adequate warning to other drivers, including
Defendant Christopher R. Villaronga, of his intent to turn left; and
(c) failing to use proper and safe turning procedures under the
10
circumstances then present.
The negligence of Defendant Villaronga was alleged to have consisted of
the following:
(a) failing to have his vehicle under proper and adequate control at the
time of the collision;
(b) operating his vehicle in a careless and reckless manner without
due regard for the rights and safety of those lawfully upon the roadway,
one of whom was Plaintiff Debra Benner at the point aforesaid;
(c) failing to see that the car in which plaintiff was a passenger had
stopped;
(d) failing to stop his vehicle prior to colliding with the rear end of the
car in which plaintiff was a passenger;
(e) following too closely so as to prevent defendant from being able
to stop his car prior to colliding with the rear end of the car in which the
plaintiff was a passenger; and
5
N.T. 21.
6
N.T. 23.
7
N.T. 23-24, 76.
8
N.T. 25, 67.
9
Plaintiff’s Complaint, filed May 9, 2003.
10
Plaintiff’s Complaint, Count II.
3
(f) failing to prevent a collision with the car in which plaintiff was a
passenger when there was sufficient time and space to either stop or avoid
colliding with the rear end of the car in which the plaintiff was a
11
passenger.
Prior to trial, Plaintiff settled with Defendant Miller in return for a payment
12
of $20,000.00. However, the issue of Defendant Miller’s responsibility for any
injuries caused to Plaintiff remained in the case for the jury’s consideration,
13
pursuant to an agreement of counsel. Thus, in terms of maximizing her
recovery, it was in Plaintiff’s interest at trial to show that all of the liability with
respect to her injuries was attributable to Defendant Villaronga; and, in terms of
limiting any award against him, it was in Defendant Villaronga’s interest to show
that some or all of that liability was attributable to Defendant Miller.
Stated otherwise, it was in Plaintiff’s interest at trial to disavow the
allegations of her complaint that Defendant Miller had been negligent, and it was
in Defendant Villaronga’s interest to challenge that disavowal. This process began
in the opening statement of Plaintiff’s counsel, when he advised the jury as to why
Plaintiff was no longer pursuing a claim against Defendant Miller:
Initially, [Plaintiff] had doubts about whether Mr. Miller himself was
to blame for what happened. She was thinking that it led to the fact with
the special left-hand turn lane, how could Mr. Villaronga have hit Mr.
Miller’s car if Mr. Miller’s car was completely in the center lane. So
initially [Plaintiff] felt that Mr. Miller might be partially to blame too for
how he was stopped preparing to make a left-hand turn.
It has taken a long time to get to court on this case. This accident
happened 5 years ago. During that time we have done a lot of what is
called pretrial discovery where we gather information, we take statements
from people.
During the course of discovery it became clear that Mr. Miller
probably did not bear responsibility for what happened and that the
responsibility for this accident really lies with Mr. Villaronga. So we are
here in court because [Plaintiff] has sued Christopher Villaronga seeking
14
compensation for what happened to her because of that accident.
11
Plaintiff’s Complaint, Count I.
12
N.T. 121-22. Neither Defendant Miller nor his counsel participated in the trial.
13
N.T. 121.
14
N.T. 11.
4
Plaintiff proceeded to testify on direct examination that, contrary to the
15
averments in her complaint, Defendant Miller had in fact been in the turn lane,
16
and that she was “pretty sure” he had had his turn signal on. She testified further
in response to questions from her counsel as follows:
Q . . . [I]n [your] complaint essentially what it says is that at
least at the time the complaint was filed you thought that Mr. Miller, the
driver of the vehicle you were in, was at least partially to blame for the
accident?
A Yes, that was my original I guess supposition is what I would
call it.
Q Why was that your supposition?
A Just because—like what the detective had pointed out, the
lane was narrow and I wasn’t sure, did the vehicle fit in the lane, didn’t it.
I wasn’t sure. I supposed or made the assumption that perhaps it did not.
Q Do you no longer believe that Mr. Miller was at fault in this
accident?
17
A No, I don’t believe he was at fault.
Given Plaintiff’s strategy of utilizing her withdrawal of her claim against
Defendant Miller as evidence that she believed her earlier allegations of
negligence on the part of Defendant Miller were incorrect, Defendant’s counsel,
not surprisingly, sought to bring to the jury’s attention that a different motivating
factor may have been at work in her decision not to proceed further against
18
Defendant Miller—namely, his payment of $20,000.00. The court permitted him
19
to do so. In this regard, Plaintiff also conceded on cross-examination that her
willingness to excuse Defendant Miller from the case had occurred not at the time
of the depositions which supposedly revealed his lack of responsibility, but more
20
than two years later when he agreed to pay her money.
15
N.T. 24.
16
N.T. 25.
17
N.T. 96-97.
18
N.T. 119-22.
19
N.T. 122.
20
N.T. 122-25.
5
With respect to the severity of Plaintiff’s injuries resulting from the
accident, the evidence at trial was sharply conflicted. Prior to the accident, she
21
had been undergoing psychological counseling and suffered from a preexisting
22
degenerative neck condition. As of the time of the accident, she had already
232425
undergone three neck surgeries and was, at least temporarily, not working.
26
More surgeries ensued after the accident. According to her testimony, following
the 2001 accident (a) in February of 2004 she abandoned an attempt to resume her
2728
career as a veterinarian, (b) she obtained a master’s degree in divinity, and (c)
29
she became employed as a chaplain at the Hershey Medical Center. However,
30
she testified, her life “ha[d] become just survival.”
The first two neck surgeries performed following the accident occurred on
3132
April 3, 2002, and November 11, 2002, and were performed by an orthopedic
33
spine surgeon named Steven Wolf. Following the November 11, 2002, surgery,
34
Plaintiff began treating with Dr. JeanSanto, a pain management specialist. In
April of 2004, in response to Plaintiff’s complaint of “a general weakness in [the]
21
N.T. 58-59.
22
N.T. 14-21.
23
N.T. 14-21.
24
Plaintiff had written a letter to her employer shortly prior to the accident indicating her
intention to resign. Plaintiff’s Ex. 32 (letter dated May 3, 2001).
25
N.T. 83.
26
N.T. 50, 52.
27
N.T. 84.
28
N.T. 13, 88.
29
N.T. 88-89.
30
N.T. 91.
31
N.T. 50.
32
N.T. 52.
33
N.T. 6, Plaintiff’s Ex. 33 (deposition testimony of Dr. Steven Wolf).
34
N.T. 55.
6
35
left arm and sort of a clumsy feeling,” Dr. Santo referred her to a neurosurgeon
36
named StevenPowers. Plaintiff conceded that the treatment which Dr. Powers
37
provided was not for neck symptoms.
38
On April 29, 2004, Dr. Powers performed “thoracic outlet surgery.” Four
months later, he performed an operation in connection with complaints by Plaintiff
39
as to right arm numbness. A month after that, Dr. Powers performed further
40
surgery related to the right arm. However, Plaintiff continued to complain of
41
pain. As the referring physician, Dr. Santo received a report from Dr. Powers
42
indicating that he was at a loss to explain Plaintiff’s continuing symptoms.
In deposition testimony presented to the jury by Plaintiff, Dr. Santo opined
that the “surgeries performed by Dr. Powers were necessitated by sequelae of the
cervical spine surgeries that were a result of her motor vehicle accident.” In
arriving at this conclusion, according to the testimony of Dr. Santos, she had
43
reviewed communications and reports of Dr. Powers. Over Plaintiff’s hearsay
35
N.T. 78.
36
N.T. 60, 78.
37
N.T. 81.
38
N.T. 79.
39
N.T. 82-83.
40
N.T. 82-83.
41
N.T. 30, Plaintiff’s Ex. 41 (deposition testimony of Dr. Santo).
42
N.T. 30-31, Plaintiff’s Ex. 41 (deposition testimony of Dr. Santo).
43
N.T. 7-8, 31, 34-35, Plaintiff’s Ex. 41 (deposition testimony of Dr. Santo). Included in Dr.
Santo’s testimony on direct examination was the following exchange:
Q Now, base on your knowledge of [Plaintiff] and what you
learned from Dr. Powers reporting back to you, did you ever reach an
opinion based on reasonable medical certainty as to the cause for the
surgery that Dr. Powers performed?
A Sure. . . .
N.T. 7-8, Plaintiff’s Ex. 41 (deposition testimony of Dr. Santo).
7
44
objection, the court declined to exclude from the jury’s consideration the
45
following portion of Dr. Santo’s deposition testimony on cross-examination :
Q . . . [Dr. Powers] wrote “In summary, I have treated [Plaintiff]
for bilateral neurogenic thoracic outlet syndrome. And I have treated her
for right ulnar entrapment neuropathy at the elbow and right median nerve
entrapment at the right wrist.
“I can speculate that the thoracic outlet syndrome
abnormality is likely the result of an upward vertical pull on the inferior
trunks of the brachial plexus due to her prior cervical fusions and overall
distraction of the height of her spine.
“I have seen this in several cases now with patients who have
undergone over distraction following anterior discectomies and interbody
fusions with and without plate replacement.
“I found that both operations evidence of compression from
the transverse cervical artery from which she obtained early relief,
particularly on the left side; felt also on the right side with ligation and the
division of the artery and decompression of the interior trunk of the
brachial plexus.
“The relationship of any motor vehicle accident to
aggravating her pre-existing condition, which was the result of her
anatomical anomaly transverse cervical arteries and the pre-existing
condition of the distracted spine due to her spine fusions is uncertain to
me. I do not think that the ulnar neuropathy or the carpal tunnel that she
was treated for by me has any relationship to her prior car accident, at least
in a direct sense.”
Now, are you saying you disagree with Dr. Powers?
A Well, as you stated earlier, I am not a surgeon; but I can tell
you that [Plaintiff] didn’t have any of these prior to the motor vehicle
accident. She has—she had them afterwards.
Dr. Powers went so far as to speculate a relationship, but he
said he was uncertain. And he would not assign a certainty to it.
So in my opinion, based on my perspective in seeing her over
the past three years, I can see more of a progression of these symptoms
and the relationship.
And in my opinion, yes, there is a relationship; but I have that
advantage of having that long-term perspective.
Q So even though you are not a surgeon and didn’t operate on
her, you have formed an opinion that the surgeries were related to the
motor vehicle accident?
46
A Yes.
44
N.T. 32, Plaintiff’s Ex. 41 (deposition testimony of Dr. Santo).
45
N.T. 215-16.
8
4748
In other deposition testimony, a non-treating neurosurgeon in the person
of James P. Argires, M.D., was presented to the jury as an expert witness by
49
Plaintiff. Like Dr. Santo, Dr. Argires had reviewed, inter alia, the information
50
supplied by Plaintiff’s treating surgeon, Dr. Powers. Dr. Argires opined, perhaps
slightly ambiguously, that the “surgical procedures after the accident . . . were
necessary in the treatment course following the accident . . . .” Over Plaintiff’s
objection, as related hereafter, the court declined to redact the following testimony
of Dr. Argires on cross-examination:
Q Now—and you mentioned the operations about the thoracic
outlet depressions. Are you aware that Dr. Powers, the neurosurgeon who
performed those surgeries, does not relate those to the automobile
accident?
[PLAINTIFF’S COUNSEL]: Objection. . . .
A I don’t know that he—
* * * *
[PLAINTIFF’S COUNSEL]: That’s clearly hearsay and is
inadmissible. That doctor’s opinions are hearsay. . . .
You’re also mischaracterizing. He’s saying that given the
point in time he entered the case it’s hard for him to reach any opinions
and he frankly deferred to her other doctors.
So those are the basis of my objections. . . .
Q Let me—perhaps just did you review Dr. Powers’ reports?
A I did.
Q And in terms of his surgeries, in his reports he did not relate
them to the—directly to the automobile accident?
[PLAINTIFF’S COUNSEL]: Same—
A He made no definitive statement, no.
[PLAINTIFF’S COUNSEL]: Objection as before.
Q And, of course, you were not present at any of those
surgeries—
46
N.T. 32-34, Plaintiff’s Ex. 41 (deposition testimony of Dr. Santo).
47
N.T. 8, Plaintiff’s Ex. 36 (deposition testimony of Dr. Argires).
48
N.T. 5, Plaintiff’s Ex. 36 (deposition testimony of Dr. Argires).
49
N.T. 7, Plaintiff’s Ex. 36 (deposition testimony of Dr. Argires).
50
N.T. 33, Plaintiff’s Ex. 36 (deposition testimony of Dr. Argires).
9
A No.
Q —or the—
A No. That’s correct.
Q But you disagree with him?
[PLAINTIFF’S COUNSEL]: Objection. Same objection[.]
A I disagree with him in—in what respect?
Q Well, in terms of relating that directly to the automobile
accident.
A I can’t answer that because he would—he was the one who
carried out a surgical procedure in the overall course of this lady’s
treatment. And he must have had some idea that—that this was trauma
related or otherwise he wouldn’t have proceeded with it.
I mean it was an ongoing evaluation and he felt that he could
help her with a decompression as well as thoracic outlet syndrome. The
decompression—I’m looking here at his notes to see if I can pick up
anything here. He must have thought that this was related because if he
continued to speak—to relate in his consultations—and I have them here
in front of me—that he had talked to her about the failure of the
management to date. This was in April 6[,] ’04. And so he felt that
perhaps further decompression might be of value to her.
He did not specifically state that this was related to the
accident, but it’s in the course of treatment. So I would have assumed that
his overall thought process was that it was related.
Q Well, if—if you look at his report of February 14th
of ’05—
[PLAINTIFF’S COUNSEL]: Again just note my continuing
objection to this line of questioning and the answers that it’s eliciting.
Q He makes the statement, the relationship of any
motor vehicle accident to aggravating her pre-existing condition, which
was the result of her anatomical anomaly, and the pre-existing condition of
the distracted spine due to her spine fusions, is uncertain to me. I do not
think the ulnar neuropathy of the carpal tunnel that she was treated for by
me has any relationship to her prior car accident, at least in a direct sense.
A That’s his opinion.
Q That’s pretty—
A Yeah.
Q Okay.
A He still went ahead with the surgery.
Q But the fact that she had surgery doesn’t mean it had
to be related to the automobile accident?
A He saw her in the course of treatment. He stated—he
stated that she had had multiple treatment courses, that all had failed, and
10
then he went on ahead to discuss with her the possibility of decompressing
her brachial plexus and that might offer her some relief.
Now why would you want to take somebody to
surgery with additional—on the same side of her injury, to surgery, if it
had no connecting issues to what happened to her? Why would you want
to do that?
Q I don’t know. But why would he say, however, I do
not feel that any direct injury from her motor vehicle accident would have
resulted in this condition?
A Well, he said—
Q Note my—
A He says a direct insult, and I think that’s probably
true. The direct insult of the brachial plexus probably did not occur. But
if you look at all the surgical procedures that this lady had, both anterior
and posteriorly, the construct of what occurred here changed the whole
biomechanics of her cervical spine which probably caused her some
difficulty with the brachial plexus.
I—I don’t know. He—he felt that he might have
been able to offer her some additional relief. Why he did the ulnar nerve
decompression I have no idea.
* * * *
[PLAINTIFF’S COUNSEL]: Just note my objection to the
last question of counsel because it was out of context to the following
sentence. I do not think that the ulnar neuropathy or the carpal tunnel that
she was treated for by me has had any relationship to her prior car accident
at least in a direct sense. And we’ve made no allegation that ulnar
neuropathy or carpal tunnel are related. Counsel tried to mischaracterize
that as a statement relating to the brachial plexus surgeries which is not
correct and, in fact, the doctor so states in his report that it’s very difficult
for him as a treating physician, seeing a patient three years after initial
injury, to attempt to reach a conclusion.
He goes on and says that his opinions are soft and
poorly substantiated in that regard. So I think Dr. Powers was being
honest in saying that he really doesn’t know and was deferring, as I said
earlier, to other doctors.
So, again, my objection is to frankly
mischaracterizing Powers’ testimony. It is also hearsay. I have a
continuing objection in that regard. Counsel certainly can depose Dr.
Powers.
[DEFENDANT’S COUNSEL]: In response I’m simply—this
witness has said everything that’s happened to her afterwards was related
to the accident.
[PLAINTIFF’S COUNSEL]: And I think you have the right
to fairly probe that but not with hearsay evidence and not by
mischaracterizing and taking out of context parts of sentences.
11
And I think the doctor has finally made it clear to you
that in his opinion, looking back on it, looking at the entire record, which
Powers clearly indicates he came in at a point in time three years later, that
he does not agree. So let’s move on. . . .
Dick, if you look at the last page of his report, of
Powers’ report, he does not say it’s not related. He says it’s uncertain to
me. And you’re arguing with my witness saying that Dr. Powers said it’s
not related, the brachial plexus. He just says it’s uncertain to him.
[DEFENDANT’S COUNSEL]: That wasn’t my
51
question. . . .
In substance, Plaintiff portrayed herself, through her own testimony and
525354
through the testimony of Dr. Santo, Dr. Wolf and Dr. Agires, as the victim of
a serious aggravation of a preexisting condition. Defendant portrayed Plaintiff as
55
an individual with a predilection for surgery. Through the testimony of an expert
in the person of an orthopedic surgeon named Robert R. Dahmus, Defendant also
presented evidence tending to show that Plaintiff was an individual prone to
56
“symptom magnification,” that the neck injuries Plaintiff ascribed to the accident
were instead caused by a normal progression of her preexisting cervical
57
condition, and that the non-cervical surgeries performed by Dr. Powers similarly
58
had no relation to the accident.
Following the jury’s verdict finding that Plaintiff’s injuries from the
accident did not rise to the level of a serious impairment of a body function and
awarding Plaintiff damages for economic losses in the amount of $10,000.00,
Plaintiff filed a Motion for Post-Trial Relief, requesting, inter alia, a “hearing
51
N.T. 32-38, Plaintiff’s Ex. 36 (deposition testimony of Dr. Agires).
52
Plaintiff’s Ex. 40 (deposition testimony of Dr. Santo).
53
Plaintiff’s Exs. 33-34 (deposition testimony of Dr. Wolf).
54
Plaintiff’s Ex. 36 (deposition testimony of Dr. Agires).
55
N.T. 184-86.
56
N.T. 38, Defendant’s Ex. 10 (deposition testimony of Dr. Dahmus).
57
N.T. 29-32, Defendant’s Ex. 10 (deposition testimony of Dr. Dahmus).
58
N.T. 32-33, Defendant’s Ex. 10 (deposition testimony of Dr. Dahmus).
12
regarding jury deliberations.” In this respect, the motion alleged in pertinent part
the following:
1. This matter was tried before a jury from November 6 to November
9, 2006.
2. The jury deliberated for approximately 6 hours over a two-day
period (November 9 and November 13, 2006).
3. On November 13, 2006, the jury announced its verdict, finding
Defendant, Christopher R. Villaronga, solely liable for the subject
accident, and assessing Plaintiff’s damages at $10,000.00, consisting of
$7,500.00 for past lost earnings and $2,500.00 for past medical expenses.
The jury also found Plaintiff did not suffer serious impairment of a body
function, which resulted in no award for non-economic damages.
4. After the Court dismissed the jury, Plaintiff’s counsel had a
discussion in the courtroom with one of the jurors (an older female juror
with gray hair whom Plaintiff’s counsel believes was juror [number and
name deleted]. The juror discussed the bases of the verdict and
specifically stated it was her belief, as well as the belief of other jurors,
that money cannot help Plaintiff, and that what Plaintiff really needs is
more faith. The juror then pulled from her pocketbook and handed
Plaintiff’s counsel a book titled “The Great Physician” by Lillian B.
Yeomans, M.D.. The book appears to be based upon the principles of
Christian Science. The juror stated that she had been reading the book and
believed it would help Plaintiff.
5. In light of the above, it appears that at least some of the jurors
violated their oath to base their verdict solely on the factual evidence
presented at trial and the Court’s instructions regarding the law.
6. The Court is permitted to order a hearing and take post-trial
testimony of extraneous influences which might have affected (prejudiced
the jury during their deliberations. . . .
7. At such a hearing, the discharged jurors may testify to the existence
of outside influences during their deliberations but may not testify about
the effect these outside influences had upon the jurors in reaching a
decision. . . .
WHEREFORE, Plaintiff respectfully requests that this Honorable
Court conduct a hearing with respect to jury deliberations, during which
hearing the discharged jurors will be asked to give testimony regarding the
59
existence of outside influences during their deliberations.
The court declined to convene the hearing requested, and, to the extent that
Plaintiff was seeking a new trial based upon the aforesaid averments, denied the
59
Plaintiff’s Motion for Post-Trial Relief, at 1-3, filed November 21, 2006.
13
60
request. The balance of Plaintiff’s motion for post-trial relief was also
61
subsequently denied. From these orders, Plaintiff filed an appeal on March 20,
62
2007.
DISCUSSION
Admission of Evidence of Terms of Settlement
Between Plaintiff and Defendant Miller
Statement of law. The admission of evidence is normally within the sound
discretion of the trial court. Quinby v. Plumsteadville Family Practice, Inc., 589
Pa. 183, 907 A.2d 1061, 1078 (2006).As a general rule, evidence is admissible if
63
it is relevant, and evidence is relevant if it has “any tendency to make the
existence of any fact that is of consequence to the determination of the action more
64
probable or less probable than it would be without the evidence.”
With specific reference to settlement agreements, under Section 6141 of the
Judicial Code it is provided as follows:
(a) Personal injuries.—Settlement with or any payment made to an
injured person or to others on behalf of such injured person with the
permission of such injured person or to anyone entitled to recover damages
on account of injury or death of such person shall not constitute an
admission of liability by the person making the payment or on whose
behalf the payment was made, unless the parties to such settlement or
payment agree to the contrary.
* * * *
(c) Admissibility in evidence.—Except in an action in which final
settlement and release has been pleaded as a complete defense, any
settlement or payment referred to in subsection[] (a) . . . shall not be
admissible in evidence on the trial of any matter.
60
Order of Court, December 1, 2006.
61
Order of Court, February 23, 2007.
62
As previously noted, the appeal was taken in the absence of an entry of judgment. In addition,
a motion filed by Defendant to mold the verdict had not been responded to by Plaintiff and was
pending at the time of the appeal.
63
Pa. R.E. 402.
64
Pa. R.E. 401.
14
Act of July 9, 1976, P.L. 586, §2, 42 Pa. C.S. §6141(a), (c). Under this section,
the admission of evidence of a settlement, even if erroneous, may be harmless,
depending on the circumstances. Weingrad v. Philadelphia Elec. Co., 324 Pa.
Super. 16, 21, 471 A.2d 100, 103 (1984) (erroneous admission of evidence of
settlement with one defendant harmless with respect to plaintiff where jury found
that particular defendant not negligent).
Under Pennsylvania Rule of Evidence 408, it is provided that “[e]vidence
of . . . accepting . . . a valuable consideration in compromising . . . a claim which
was disputed as to either validity or amount . . . is not admissible to prove liability
for or invalidity of the claim or its amount. . . . This rule . . . does not require
exclusion when the evidence is offered for another purpose, such as proving bias
or prejudice of a witness, negativing a contention of undue delay, or proving an
effort to obstruct a criminal investigation or prosecution.” Pa. R.E. 408.
Where a party has made a prior statement, inconsistent with his or her
testimony at trial, the prior statement is admissible against the party not only for
purposes of impeachment but also as substantive evidence of the truth of the prior
statement. Lemmon v. Bufalino, 204 Pa. Super. 481, 484, 205 A.2d 680, 683-84
(1964).
Application of law to facts. In the present case, where it was in Plaintiff’s
interest to show at trial that no negligence on the part of Defendant Miller had
been involved in the accident in which she was injured, her prior inconsistent
statements in the complaint were admissible against her for both impeachment and
substantive purposes. To counter the effect of this evidence, she attempted to
bolster her credibility as to her present version of the accident by suggesting that
she chose not to pursue the case against Defendant Miller because she realized her
earlier allegations were untrue. Having injected this issue into the case, she had,
in the court’s view, opened the door to Defendant’s introduction of evidence
tending to show that her motivation in releasing Defendant Miller was not a
15
realization that her factual allegations against him had been untrue but the receipt
of a payment of $20,000.00 from him.
Based upon the unique context of the ruling now challenged by Plaintiff,
and in view of the fact that the jury ultimately found that Defendant Miller was not
negligent and that Defendant Villaronga was solely responsible for Plaintiff’s
compensable injuries, it is believed that the admission of evidence as to Plaintiff’s
settlement with Defendant Miller did not constitute reversible error.
Cross-Examination of Dr. Santo with
Causation Opinion of Treating Surgeon
Statement of law. “The scope of cross-examination is within the sound
discretion of the trial court . . . .” Boucher v. Pennsylvania Hosp., 2003 PA Super.
282, ¶14, 831 A.2d 623, 629.
With respect to expert testimony, Pennsylvania Rule of Evidence 703
provides as follows:
The facts or data in the particular case upon which an expert bases an opinion or
inference may be those perceived by or made known to the expert at or before the
hearing. If of a type reasonably relied upon by experts in the particular field in
forming opinions or inferences upon the subject, the facts or data need not be
admissible in evidence.
At the same time, “[a]n expert witness cannot be a mere conduit for the
opinion of another.” Comment, Pa. R.E. 703.
“It is well understood that medical experts are permitted to express
opinions which are based, in part, upon reports which are not in evidence, but
which are customarily relied upon by experts in the practice of the profession.”
Primavera v. Celotex Corp., 415 Pa. Super. 41, 47, 608 A.2d 515, 518 (1992)
(providing discussion of adoption in Pennsylvania of exception to hearsay rule and
policy behind same); see also Foster v. McKeesport Hosp., 260 Pa. Super. 485,
491, 394 A.2d 1031, 1033 (1978) (trial court properly allowed doctor to testify on
basis of another non-testifying doctor’s notes and report where non-testifying
doctor’s competency was not offered as support for testifying doctor’s opinion but
16
rather the medical facts in the report and notes, as well as testifying doctor’s
personal general medical knowledge, experience and training).
Application of law to facts. In the present case, where Dr. Powers was the
treating physician to whom Dr. Santos referred Plaintiff for surgery, where Dr.
Powers continued to advise her in their respective capacities as treating physicians,
where her opinion as to the cause of the surgeries performed by Dr. Powers
followed a review of information provided by him, and where Dr. Santos was not
a conduit for Dr. Powers’ opinion in the sense of presenting it as supportive of her
own, it is believed that it was not an abuse of discretion to permit Defendant’s
counsel, on cross-examination, to challenge the credibility of the testimony of Dr.
Santos on the issue of causation by reference to the lack of support for this theory
in the information supplied by her treating colleague. Indeed, given the testimony
of Dr. Santos that she had based her opinion, at least in part, on what she had
65
learned from Dr. Powers, a holding otherwise could have led to a
misunderstanding on the part of the jury. Finally, to the extent that Plaintiff is
correct in her view, as expressed in the statement of matters complained of on
appeal, that “Dr. Powers did not set forth any opinions which contradicted those of
Dr. Santo,” any error with respect to the allowance of this cross-examination
would appear to have been harmless.
Cross-Examination of Dr. Agires with
Causation Opinion of Treating Surgeon
Statement of law. The relegation of the scope of cross-examination to the
sound discretion of the trial court has been previously discussed, as have the
principles relating to the admissibility of information normally relied upon by
experts in the formation of opinions and the proscription on utilization of an expert
as a mere conduit for another expert’s opinion.
Application of law to facts. In the present case, where (a) Dr. Powers was a
treating physician whose surgery was at issue, (b) the jury had been previously
65
See N.T. 7-8, Plaintiff’s Ex. 41 (deposition testimony of Dr. Santo).
17
exposed to his opinion in testimony of Dr. Santo, (c) Plaintiff was apparently
conceding that some of the surgery performed by Dr. Powers was not caused by
66
the accident, (d) the opinion of Dr. Powers was, according to Plaintiff,
inconclusive as to the etiology of the condition which occasioned the balance of
his surgery, and (e) Dr. Agires interpreted the opinion of Dr. Powers as consistent
with his own opinion as to causation, it is believed that the court’s refusal to redact
the testimony of Dr. Agires on cross-examination did not constitute reversible
error. In this regard, the information as to etiology provided by the treating
surgeon (a) was not elicited for the purpose of supporting the witness’ view, (b)
was, at most, according to Plaintiff, inconclusive as to causation, (c) was adopted
by Dr. Agires as consistent with his own opinion, and (d) had already been heard
by the jury. In these circumstances, the court’s ruling as to Dr. Argire’s cross-
examination was not, in the court’s view, an abuse of discretion and, if it was,
constituted harmless error.
Refusal of Court To Conduct
Investigation of Jurors
Statement of law. It is well-settled that trial judges have broad discretion in
determining how to respond to allegations of extraneous influence on jurors.
Hostetler v. Kniseley, 322 Pa. 248, 252-53, 185 A. 300, 302 (1936). In general,
the subjection of juries to post-trial investigations is not favored by the courts,
because “full and frank discussion in the jury room, jurors’ willingness to return
an unpopular verdict, and the community’s trust in a system that relies on the
decisions of laypeople would all be undermined by a barrage of postverdict
scrutiny of juror conduct.” Tanner v. United States, 483 U.S. 107, 120-21, 107 S.
Ct. 2739, 2748, 97 L. Ed. 2d 90, 106 (1987).
Pennsylvania’s position with respect to this issue has been summarized by
the Pennsylvania Supreme Court as follows:
66
See N.T. 37, Plaintiff’s Ex. 36 (deposition testimony of Dr. Agires).
18
[T]he general framework concerning the admissibility of post-verdict
juror testimony is fairly well settled and is, in fact, embodied in
Pennsylvania Rule of Evidence 606(b), which provides:
Upon an inquiry into the validity of a verdict, . . . a juror
may not testify as to any matter or statement occurring
during the course of the jury’s deliberations or to the
effect of anything upon that or any other juror’s mind or
emotions in reaching a decision upon the verdict or
concerning the juror’s mental processes in connection
therewith, and a juror’s affidavit or evidence of any
statement by the juror about any of these subjects may not
be received. However, a juror may testify concerning
whether prejudicial facts not of record, and beyond
common knowledge and experience, were improperly
brought to the jury’s attention or whether any outside
influence was improperly brought to bear upon any juror.
. . . This competency-based principle embodies both the general
exclusionary principle referred to in the decisional law as the “no-
impeachment rule,” as well as the prevailing exceptions relating to
“prejudicial facts not of record, and beyond common knowledge and
experience” and “outside influences.” The rule reflects a policy decision
balancing the aim to ensure fair and impartial decision-making, with the
interests in confidentiality of jury deliberations and finality of duly
67
rendered verdicts.
Typical allegations which will warrant post-verdict investigation of a jury
by the trial court involve private contact by jurors with persons outside the
6869
courtroom concerning issues in the case and jury tampering.
Application of law to facts. In the present case, a juror’s suggestion to
Plaintiff’s counsel that Plaintiff should find solace in religion, while perhaps
unusual inasmuch as Plaintiff was a minister, did not, in the court’s view, imply
misconduct on the part of the jury of a degree that would warrant its subjection to
investigation by the court. It suggested, at most, that the juror, and perhaps other
67
Pratt v. St. Christopher’s Hosp., 581 Pa. 524, 536, 866 A.2d 313, 319-20 (2005) (footnotes and
citations omitted).
“The no-impeachment precept is also said to be buttressed by an overall systemic concern with
protecting the integrity of the process; the desire to avoid harassment of discharged jurors by
disappointed parties; the strategy of insulating private deliberations of jurors from public scrutiny
in order to facilitate their open and frank discussions; and a practice of preventing minority or
equivocating jurors from subsequently impugning verdicts.” Id. at 536 n.8, 581 A.2d at 320 n.8.
68
See, e.g., Pratt, supra..
69
See Pratt, 581 Pa. at 539 n.11, 866 A.2d at 322 n.11.
19
jurors, had found convincing Defendant’s argument that Plaintiff’s symptoms at
this point were more psychological than medical in origin.
For the foregoing reasons, it is believed that the issues raised in Plaintiff’s
statement of matters complained of on appeal are not meritorious.
BY THE COURT,
________________
J. Wesley Oler, Jr., J.
Richard M. Wiener, Esq.
8 Tower Bridge
Suite 400
161 Washington Street
Conshohocken, PA 19428
Attorney for Plaintiff
Richard H. Wix, Esq.
4705 Duke Street
Harrisburg, PA 17109-3099
Attorney for Defendant Villaronga
Stephen E. Geduldig, Esq.
P.O. Box 999
Harrisburg, PA 17108
Attorney for Defendant Miller
(Courtesy Copy)
20