J-A06035-14 & J-A06036-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

NOREEN LEWIS                                IN THE SUPERIOR COURT OF
                                                  PENNSYLVANIA


                 v.

TOYOTA MOTOR CORP., TOYOTA MOTOR
ENGINEERING & MANUFACTURING
NORTH AMERICA, INC., TOYOTA MOTOR
SALES USA, INC., TOYOTA MOTOR
NORTH AMERICA, INC., TOYOTA
INDUSTRIES NORTH AMERICA, INC.,
PHILLY CAR SHARE, INC., MCMAHON
LEASING, INC., CENTRAL CITY TOYOTA,
TOYOTA ARDMORE AND M & B PAUL,
INC.

APPEAL OF: M & B PAUL, INC., D/B/A
ARDMORE TOYOTA AND CENTRAL CITY
TOYOTA (IDENTIFIED IN THE CAPTION
AS CENTRAL CITY TOYOTA, TOYOTA
ARDMORE AND M & B PAUL, INC.)

                                                No. 1642 EDA 2013


            Appeal from the Judgment Entered May 15, 2013
          In the Court of Common Pleas of Philadelphia County
           Civil Division at No(s): March Term, 2010, 001088


                                *****

EVELYN LEWIS, LASHONA LEWIS, A              IN THE SUPERIOR COURT OF
MINOR BY HER PARENT AND NATURAL                   PENNSYLVANIA
GUARDIAN, EVELYN LEWIS AND EVELYN
LEWIS IN HER OWN RIGHT, BRIDGET
MCGINCHEY, A MINOR BY HER LEGAL
GUARDIAN, EVELYN LEWIS AND EVELYN
LEWIS IN HER OWN RIGHT, BRYANNA
MCGINCHEY, A MINOR BY HER LEGAL
GUARDIAN, EVELYN LEWIS AND EVELYN
LEWIS IN HER OWN RIGHT, MICHAEL
J-A06035-14 & J-A06036-14


LEWIS, A MINOR BY HIS LEGAL
GUARDIAN, AARON LEWIS AND AARON
LEWIS IN HIS OWN RIGHT AND
LAVINIA LEWIS



                       v.

TOYOTA MOTOR CORP., TOYOTA MOTOR
ENGINEERING & MANUFACTURING
NORTH AMERICA, INC., TOYOTA MOTOR
SALES USA, INC., TOYOTA MOTOR
NORTH AMERICA, INC., TOYOTA
INDUSTRIES NORTH AMERICA, INC.,
PHILLY CAR SHARE, INC., MCMAHON
LEASING, INC., CENTRAL CITY TOYOTA,
TOYOTA ARDMORE AND M & B PAUL,
INC., AND NOREEN LEWIS

APPEAL OF: M & B PAUL, INC., D/B/A
ARDMORE TOYOTA AND CENTRAL CITY
TOYOTA (IDENTIFIED IN THE CAPTION
AS CENTRAL CITY TOYOTA, TOYOTA
ARDMORE AND M & B PAUL, INC.)

                                                      No. 1643 EDA 2013


                Appeal from the Judgment Entered May 15, 2013
              In the Court of Common Pleas of Philadelphia County
               Civil Division at No(s): March Term, 2010, 001119


BEFORE: BENDER, P.J.E., LAZARUS, J., and FITZGERALD, J.*

MEMORANDUM BY LAZARUS, J.                          FILED OCTOBER 02, 2014

        M & B Paul, Inc., d/b/a Ardmore Toyota and Central City Toyota

(collectively “CCT”), appeals from the judgment entered May 15, 2013, after
____________________________________________


*
    Former Justice specially assigned to the Superior Court.



                                           -2-
J-A06035-14 & J-A06036-14



a jury returned a verdict in favor of Dr. Noreen Lewis and five other plaintiffs

who had been involved in a one-vehicle automobile accident. After careful

review of the law and the record, we affirm.

      The trial court succinctly stated the facts surrounding the accident as

follows:

           On March 8, 2008, Noreen Lewis was traveling in the right
           lane on New York’s route Seventeen (17) west headed
           towards Vestal, [New York]. Ms. Lewis was driving a
           Toyota Sienna minivan that she had rented from Philly Car
           Share. In the vehicle with her was her mother, Evelyn
           Lewis, her son Michael Lewis, and her three (3) sisters,
           Lashona     Lewis,    Bryanna   McGinchey      and   Bridget
           McGinchey. As Ms. Lewis was driving she heard a “jerk”
           and then the steering wheel of the vehicle locked and
           became immovable. As she frantically attempted to turn
           the wheel to no avail, the rear of the vehicle began to drift
           to the left. It was at that point that she tried to stop the
           vehicle by hitting the brake, however, that failed and the
           vehicle proceeded to go off the road to the left and down
           into a ravine. The vehicle came to a stop on its roof after
           rolling over multiple times.

           The passengers of the vehicle were removed from the
           vehicle by the emergency personnel that had arrived on
           the scene. Ms. Lewis was then transported to Johnson City
           Memorial Hospital where she stayed for three (3) weeks.
           She was then transferred to Binghamton Memorial Hospital
           in Binghamton, New York, where she stayed for an
           additional three (3) weeks. As a result of the accident Ms.
           Lewis suffered a concussion, a fractured temporal bone,
           lacerations to her face, ear and scalp. She also had
           compression factures [sic] with a disc bulging in her neck,
           four (4) rib fractures, a lung contusion, heart contusion,
           fractured lower back vertebrae, multiple ripped thigh
           muscles and a stretch traction injury in her left brachial
           plexus which led to severe pain in her left arm.

           Ms. Lewis’s Mother, Evelyn Lewis, suffered a cut to her
           head, a broken wrist, a punctured lung and pain in her hip.

                                       -3-
J-A06035-14 & J-A06036-14


           She was treated in the hospital where she remained for
           approximately two (2) weeks.       Bryanna McGinchey
           suffered a broken femur. Bridget McGinchey suffered a
           broken right elbow.    Lashona and Michael Lewis both
           complained of back and neck pain.

Trial Court Opinion, 7/23/13, at 2-3 (footnotes omitted).

        On March 5, 2010, Dr. Lewis filed a complaint for negligence, strict

liability, and breach of warranty in the Court of Common Pleas of

Philadelphia County1 against CCT, Philly Car Share, Inc., McMahon Leasing,

Inc., and multiple other entities, including Toyota Motor Corporation, Toyota

Motor Engineering & Manufacturing North America Inc., and Toyota Motor

Sales, U.S.A. (collectively “Toyota”).2          On the same day, all of the other

passengers also filed an action against the same defendants in the Court of

Common Pleas of Philadelphia County.3              Dr. Lewis was also named as a

defendant in the action brought by the passengers.            Thereafter, amended

complaints were filed in both actions. The amended complaints alleged that

the accident was caused due to defects in Toyota’s design or manufacture of



____________________________________________


1
    Civil Action No. 1088, March Term 2010.
2
   Toyota Motor North America, Inc. and Toyota Industries North America,
Inc. were also named as defendants. Both parties were dismissed prior to
trial by order dated January 2, 2013.
3
  Civil Action No. 1119, March Term 2010. Dr. Lewis’ daughter, Lavinia
Lewis, was a passenger and was initially a plaintiff in this case. Her claims
were dismissed prior to trial by order dated January 31, 2013.




                                           -4-
J-A06035-14 & J-A06036-14



the minivan and alleged negligence based upon CCT’s failure to properly

maintain the minivan.

       Although the amended complaints included claims of both product

defects and negligence, CCT tendered its defense to Toyota under the

assumption that Plaintiffs’ case would focus on the alleged product defects.

Toyota accepted CCT’s tender of defense and agreed to its request for

indemnification.     CCT’s counsel withdrew his appearance on January 10,

2011, prior to the close of pleadings and before significant discovery had

taken place, including inspection of the minivan. Toyota’s counsel entered

their appearances on behalf of CCT.

       Discovery closed on July 2, 2012.         Plaintiffs’ deadline to produce

expert reports was August 6, 2012, by which date Plaintiffs produced liability

reports from accident reconstructionist Frank M. Costanzo, mechanic Dennis

A. DeWane, Sr., and metallurgist David P. Pope, Ph.D.            These reports

focused on negligence claims relating to CCT’s maintenance of the minivan.

Because the Plaintiffs’ expert reports focused on negligence rather than

product defects, Toyota re-tendered the defense of CCT, and CCT’s counsel

re-entered his appearance on August 17, 2012.           Defense expert reports

were due September 4, 2012, by which date Toyota produced several

liability reports on behalf of itself and CCT.4         However, none of the
____________________________________________


4
  Toyota also moved for summary judgment, which was granted by order
dated December 18, 2012.



                                           -5-
J-A06035-14 & J-A06036-14



defendants had retained a mechanic expert, and CCT was unable to retain

one and produce a related expert report by the deadline. Thus, no report

was produced by a mechanic or any other expert in response to the report

prepared by Plaintiffs’ mechanic expert regarding CCT’s allegedly negligent

inspection and maintenance of the minivan.

       CCT filed a motion for extraordinary relief, requesting an extension to

secure a mechanic expert and report addressing Plaintiffs’ negligence theory.

The trial court denied this motion by order dated September 9, 2012. CCT

eventually retained mechanic expert Timothy J. Hilsey.        While Hilsey was

unable to inspect the minivan,5 he prepared a report, which CCT produced

on January 18, 2013. Despite the production of the report well beyond the

deadline for production of defense expert reports, the trial court permitted

Hilsey to testify at trial because Plaintiffs had adequate opportunity to

respond to his report.

       Trial began on February 26, 2013. Plaintiffs argued that the steering

wheel locked at the time of the accident due to a separation of the right

front ball joint that occurred prior to the accident.   Plaintiffs asserted that

____________________________________________


5
  CCT and Toyota both had agreed to use Lee Carr as an expert witness, and
Carr had previously inspected the minivan, which was under Plaintiffs’
control. After CCT retained Hilsey, CCT requested permission from Plaintiffs’
counsel so that Hilsey could conduct his own inspection of the minivan.
Plaintiffs’ counsel refused, and CCT filed a motion with the trial court to allow
a visual inspection of the minivan. This motion was denied by order dated
December 6, 2012.



                                           -6-
J-A06035-14 & J-A06036-14



the ball joint became separated because CCT improperly inspected the

minivan 97 days before Dr. Lewis rented it, since CCT failed to follow the

service method set forth in the 2006 Toyota Sienna maintenance manual.

Plaintiffs argued that this allegedly negligent inspection was a direct cause of

the accident.

      On March 19, 2013, the jury returned a verdict in favor of Dr. Lewis

and against CCT, only, in the total amount of $11,369,500. The jury also

returned a verdict in favor of the passenger Plaintiffs and against CCT, only,

in the total amount of $4,254,255. CCT filed motions for post-trial relief in

both actions, which were denied by orders dated April 19, 2013. Judgment

was entered on May 15, 2013. This timely appeal followed.

      CCT raises the following issues, verbatim, on appeal:

         1. Did the trial court commit prejudicial error in limiting
         the testimony of the Defendants/Appellants’ automotive
         mechanic expert, Timothy J. Hilsey, based on his alleged
         lack of qualifications, where he was eminently qualified
         and had virtually the same qualifications as Plaintiffs’
         automotive expert?

         2. Did the trial court commit prejudicial error in prohibiting
         Defendants/Appellants’ counsel from questioning their
         automotive mechanic expert, Timothy J. Hilsey, on redirect
         examination about an additional page from the subject
         vehicle’s maintenance manual where that additional page
         was highly relevant to the case and Plaintiffs opened the
         door to its use?

         3. Did the trial court commit prejudicial error in precluding
         testimony      from      Defendants/Appellants’      accident
         reconstruction expert, Lee Carr, as beyond the scope of his
         pre-trial reports where such testimony was properly
         responsive to other expert testimony presented at trial?


                                     -7-
J-A06035-14 & J-A06036-14


         4. Did the trial court commit prejudicial error in precluding
         certain portions of New York State Trooper Christopher
         Condon’s deposition testimony from being read to the jury
         as outside the scope of his post-accident report where
         Trooper Condon was an eyewitness to the post-accident
         scene and thus should have been permitted to testify via
         deposition to what he actually saw, regardless of what his
         post-accident report said?

         5. Did the trial court commit prejudicial error in denying
         Defendants/Appellants’ timely and specific mistrial motion
         and subsequent motion for reconsideration following the
         repeated allegations of Plaintiffs’ lead counsel during his
         cross examination of defense mechanical engineering
         expert, Michael James, that former defendant Toyota had
         “lost” evidence while conducting a vehicle inspection in a
         wholly unrelated and irrelevant California case?

         6. Did the trial court commit prejudicial error in denying
         Defendants/Appellants’ requests for extension of time to
         complete discovery and in denying its later requests to
         conduct a post-discovery inspection of the minivan where
         Plaintiffs’ own mechanic expert conducted a post-discovery
         inspection well after discovery had closed and the denial of
         these requests resulted in the sharp limitation of
         Defendants/Appellants’ mechanic expert’s testimony at
         trial?

Brief for Appellants, at 4-5 (footnote omitted).

      The six issues CCT raises on appeal assert that the trial court made

prejudicial errors during the pre-trial, trial, and post-trial proceedings in the

instant matter. On this basis, CCT argues that it is entitled to a new trial.

The grant of a new trial involves:

         a two-step process that a trial court must follow . . . .
         First, the trial court must decide whether one or more
         mistakes occurred at trial. These mistakes might involve
         factual, legal, or discretionary matters. Second, if the trial
         court concludes that a mistake (or mistakes) occurred, it
         must determine whether the mistake was a sufficient basis


                                      -8-
J-A06035-14 & J-A06036-14


         for granting a new trial . . . . The harmless error doctrine
         underlies every decision to grant or deny a new trial. A
         new trial is not warranted merely because some
         irregularity occurred during the trial or another trial judge
         would have ruled differently; the moving party must
         demonstrate to the trial court that he or she has suffered
         prejudice from the mistake.

Harman v. Borah, 756 A.2d 1116, 1122 (Pa. 2000) (citations omitted).

Thus, we consider whether the trial court committed any error, and, if so,

whether the error was harmless or whether Appellants suffered any

prejudice.

      In its first four issues, CCT asserts that the trial court erred in limiting

certain witness testimony.          The standard of review of a trial court’s

admission or exclusion of evidence, including the testimony of expert

witnesses, is well-established and narrow:

         These matters are within the sound discretion of the trial
         court, and we may reverse only upon a showing of abuse
         of discretion or error of law. An abuse of discretion may
         not be found merely because an appellate court might
         have reached a different conclusion, but requires a result
         of manifest unreasonableness, or partiality, prejudice,
         bias, or ill-will, or such lack of support so as to be clearly
         erroneous. In addition, [t]o constitute reversible error, an
         evidentiary ruling must not only be erroneous, but also
         harmful or prejudicial to the complaining party.

Jacobs v. Chatwani, 922 A.2d 950, 960 (Pa. Super. 2007). “Generally, all

relevant evidence is admissible.” Slusaw v. Hoffman, 861 A.2d 269, 274

(Pa. Super. 2004); Pa.R.E. 402.          “Although relevant, evidence may be

excluded if its probative value is outweighed by the danger of unfair

prejudice,   confusion   of   the    issues,   or   misleading   the   jury,   or   by

                                        -9-
J-A06035-14 & J-A06036-14



considerations of undue delay, waste of time, or needless presentation of

cumulative evidence.” Pa.R.E. 403.

      The admission of expert testimony is governed by Pennsylvania Rule of

Evidence 702:

         If scientific, technical or other specialized knowledge
         beyond that possessed by a layperson will assist the trier
         of fact to understand evidence or to determine a fact in
         issue, a witness qualified as an expert by knowledge, skill,
         experience, training or education may testify thereto in the
         form of an opinion or otherwise.

Pa.R.E. 702.    In determining whether an expert witness is qualified to

provide opinion testimony regarding a particular issue, the reviewing court

must determine whether that witness has sufficient skill, knowledge or

experience, such that the opinion will in all probability aid the trier of fact in

determining the truth.     Wexler v. Hecht, 847 A.2d 95, 99 (Pa. Super.

2005).   If the reviewing court determines that the witness does not have

such skill, knowledge or experience, it may refuse to permit such testimony.

Miller v. Brass Rail Tavern, Inc., 664 A.2d 525, 528-29 (Pa. 1995).

      In its first issue, CCT argues that expert witness Timothy J. Hilsey

should have been permitted to offer his opinion that the separation of the

ball joint did not cause the accident, since he would have “expected” to see

more scratches on the wheel if the separation had occurred prior to the

vehicle rolling over multiple times. CCT asserts that Hilsey was qualified to

offer such testimony based on his education in the automotive field, his

experience as a parts and service director at a Cadillac dealership, and his

                                      - 10 -
J-A06035-14 & J-A06036-14



certification as a state emissions mechanic who has performed a large

number of Pennsylvania state vehicle inspections.

      However, Hilsey was presented as an automotive mechanic, and,

accordingly, the trial court qualified him only as an automotive mechanic

expert.   Additionally, Hilsey did not inspect the vehicle involved in the

instant accident.   For these reasons, the trial court found that Hilsey’s

testimony regarding the speed of the car, the movement the tire made, or

damage to the vehicle would have been have been purely speculative and

outside his realm of expertise. Thus, the trial court properly determined that

Hilsey “was limited to the bounds of that of an automotive mechanic[,] not

that of a mechanical engineer or any other accident reconstruction expert.”

Trial Court Opinion, 7/23/13, at 7.   See Dambacher v. Mallis, 485 A.2d

408, 416-20 (Pa. Super. 1984) (automobile mechanic with no engineering

experience or training not qualified to render opinions on vehicle dynamics).

      CCT also claims that Hilsey should have been permitted to give his

opinion regarding damage to the vehicle because Plaintiffs’ automotive

mechanic expert, Dennis A. DeWane, Sr., was permitted to do so and both

experts allegedly have similar qualifications.      However, when DeWane

attempted to answer a question about whether markings on the right front

tire would be consistent with ball joint separation before the vehicle lost

control or after, CCT’s counsel objected to the question as being beyond the

scope of his expertise.   This objection was sustained.   Moreover, DeWane

had qualifications that Hilsey did not possess, including experience in

                                    - 11 -
J-A06035-14 & J-A06036-14



accident reconstruction and previous qualification as an expert in accident

reconstruction, vehicle failure, and parts failure.   Therefore, the assertion

that Hilsey was treated prejudicially is without merit.

      Assuming, arguendo, that the trial court should have qualified Hilsey

to testify to the damage he would have expected to see on the minivan, it is

harmless error that he was precluded from doing so.       Two of CCT’s other

experts, Lee Carr and Mike James, were qualified and provided testimony

regarding the ball joint, forces of separation, accident dynamics, and

damage to the vehicle.     Thus, the trial court’s limitation of the scope of

Hilsey’s expert testimony did not constitute a prejudicial error justifying a

new trial. Jacobs, supra.

      The second issue CCT raises on appeal also involves Hilsey’s

testimony.    CCT claims that the trial court abused its discretion by

precluding Hilsey from testifying about a particular page from the Toyota

Sienna maintenance manual during redirect examination. At trial, Plaintiffs

argued that CCT’s failure to follow the recommended procedure in that

manual resulted in failure to discover the compromised right ball joint.

While questioning DeWane on direct examination, Plaintiffs used a page from

the maintenance manual to demonstrate that CCT had not followed the

recommended procedure to inspect the front end of the minivan. Plaintiffs

referred to the page again, while cross-examining Hilsey, to verify that CCT

did not follow the inspection procedure it contained. Then, during Hilsey’s




                                     - 12 -
J-A06035-14 & J-A06036-14



redirect examination, CCT sought to introduce an additional page of the

manual to suggest that the procedure outlined was optional.

      The trial court did not permit the additional page of the maintenance

manual to be introduced because it had been never been mentioned

previously and was beyond the scope of direct and cross examination. This

was appropriate, since “[t]he scope of redirect examination is largely within

the discretion of the trial court.” Commonwealth v. Dreibelbis, 426 A.2d

111, 117 (Pa. 1981). CCT asserts that the separate page should have been

introduced based upon Pennsylvania Rule of Evidence 106, which states that

“[i]f a party introduces all or part of a writing or recorded statement, an

adverse party may require the introduction, at that time, of any other part—

or any other writing or recorded statement—that in fairness ought to be

considered at the same time.” Pa.R.E. 106.

      However, the page CCT sought to introduce indicated that the service

method in the manual is “very effective to perform repair and service” and

provides warnings in the event other methods are used. Defendants’ Exhibit

24.   Even if this page demonstrates that other procedures might exist for

inspection purposes, the information does not detract from Plaintiffs’

argument that the manual contains the recommended procedure. Indeed,

the page does nothing but bolster Plaintiffs’ position.   Thus, the additional

page CCT sought to introduce did not need to be considered in order to be

fair to CCT, and the trial court properly denied its admission into evidence.

Jacobs, supra.

                                   - 13 -
J-A06035-14 & J-A06036-14



      In its third issue, CCT asserts that the trial court erred in limiting the

testimony of expert witness Lee Carr. The trial court prevented Carr from

testifying to matters the court considered to be outside the scope of his

previously-served expert report.      Pennsylvania Rule of Civil Procedure

4003.5 makes clear that the expert’s testimony at trial is limited to the fair

scope of his deposition testimony or pre-trial report:

         To the extent that the facts known or opinions held by an
         expert have been developed in discovery proceedings . . .
         the direct testimony of the expert at the trial may not be
         inconsistent with or go beyond the fair scope of his or her
         testimony in the discovery proceedings as set forth in the
         deposition, answer to an interrogatory, separate report, or
         supplement thereto.

Pa.R.C.P. 4003.5(c). However,

         it is impossible to formulate a hard and fast rule for
         determining when a particular expert’s testimony exceeds
         the fair scope of his or her pretrial report. Rather, the
         determination must be made with reference to the
         particular facts and circumstances of each case.          The
         controlling principle which must guide is whether the
         purpose of Rule 4003.5 is being served. The purpose of
         requiring a party to disclose, at his adversary's request,
         “the substance of the facts and opinions to which the
         expert is expected to testify” is to avoid unfair surprise by
         enabling the adversary to prepare a response to the expert
         testimony. (Citations omitted).

         In other words, in deciding whether an expert’s trial
         testimony is within the fair scope of his report, the accent
         is on the word ‘fair.’ The question to be answered is
         whether, under the particular facts and circumstances of
         the case, the discrepancy between the expert’s pretrial
         report and his trial testimony is of a nature which would
         prevent the adversary from preparing a meaningful
         response, or which would mislead the adversary as to the
         nature of the appropriate response.


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J-A06035-14 & J-A06036-14



Tiburzio-Kelly v. Montgomery, 681 A.2d 757, 764-65 (Pa. Super. 1996)

(quoting Wilkes-Barre Iron & Wire Works, Inc. v. Pargas of Wilkes-

Barre, Inc., 502 A.2d 210, 212-13 (Pa. Super. 1985)) (emphasis in

original).   Despite the language of Rule 4003.5, “[w]here an expert’s

fact/opinion testimony is fair rebuttal to the other party’s expert testimony,

it cannot be seen as unfairly surprising or prejudicial.”       Foflygen v.

Allegheny Gen. Hosp., 723 A.2d 705, 710 (Pa. Super. 1999) (citation

omitted).

      Instantly, the trial court determined, and CCT essentially admits, that

Carr’s proposed testimony was outside the scope of his pre-trial report. See

Brief for Appellants, at 33-34 (stating that Carr sought to address theories

for the first time in response to DeWane’s opinions).      In response to a

motion in limine filed by Dr. Lewis seeking to preclude Carr’s testimony, CCT

even asserted that Carr’s report provides “a complete expression of Dr.

Carr’s opinions.”   Defendants’ Response in Opposition to Motion in Limine

Seeking to Preclude Testimony of Lee Carr, 2/5/13, at ¶ 9. However, CCT

argues that Carr’s testimony should have been admissible since he was

prepared to testify in response to Plaintiffs’ expert witness, DeWane. Thus,

we must consider whether the proposed testimony would have been “fair

rebuttal” to DeWane’s testimony.

      The theories Carr intended to advance as rebuttal to DeWane’s

testimony included the following:




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J-A06035-14 & J-A06036-14


          (1) the damage to the right front ball joint assembly,
          including the control arm, was not consistent with a pre-
          accident ball joint separation which occurred at highways
          speed because, if the ball joint separated at speed, the
          arm would “flail” around at a wide angle and incur specific
          damage markings which were not found on the minivan;

          (2) a pre-accident ball joint separation would make noise;

          (3) the forces exerted on the ball joint from “simply
          moving over asphalt covered roadways would be
          insufficient to  separate   the   ball   joint;” and,

          (4) an inspection procedure that puts a car on a lift does
          not invalidate the possibility of discovering free play in a
          ball joint.

Brief for Appellants, at 31. DeWane testified on each of these subjects. He

described the damage that occurred to the right front ball joint assembly,

indicated that a separation under normal driving conditions does not always

make noise, described the conditions necessary to separate a ball joint, and

stated that using a lift can preclude the detection of a defective ball joint.

DeWane’s pre-trial report also contained these opinions, which gave CCT

notice of them prior to trial.       Carr failed to include the specific responses

listed above in his pre-trial report.              Nevertheless, “fair rebuttal” is

permissible. The connotation of fair in this context is that the testimony is

not surprising or prejudicial. With an exception for Carr’s description of the

control arm “flailing,”6 none of the counter-testimony Carr was prepared to
____________________________________________


6
   The trial court precluded testimony specifically about the control arm
“flailing” as being beyond the scope of Carr’s pre-trial report. Even though
Carr’s testimony was responsive to other expert testimony, this particular
(Footnote Continued Next Page)


                                          - 16 -
J-A06035-14 & J-A06036-14



provide would have been surprising, even though it was not included in his

pre-trial report.      Thus, the trial court erred in limiting Carr’s testimony on

these issues. Foflygen, supra.

      Although the trial court should have permitted Carr to testify in

response to DeWane’s testimony, its failure to do so was harmless error.

Most of the substance of Carr’s proposed testimony was admitted into

evidence, either through Carr’s testimony, or the testimony of CCT’s other

experts.   Carr himself testified to the expected damage to the ball joint

assembly. N.T. Trial P.M., 3/12/13, at 107. James testified that the forces

that exist in driving down the road under normal conditions would be

inadequate to cause a ball joint separation. N.T. Trial P.M., 3/13/13, at 11.

Hilsey testified that an inspection method using a lift permits a mechanic to

discover if a ball joint is compromised. N.T. Trial P.M., 3/8/13, at 97. As to

the noise that a separated ball joint would have made, CCT was not directly

precluded from introducing this evidence.             Carr was prevented from

discussing “flailing” of the control arm, which would have caused the noise.

At sidebar, CCT’s counsel indicated Carr’s testimony about “flailing” would be

relevant for the purposes of damage and noise.           CCT stopped the line of
                       _______________________
(Footnote Continued)

issue would not have been “fair rebuttal.” As the trial court noted, Carr’s
discussion about the control arm “flailing” would have required a scientific
explanation, which was not included in Carr’s report. Carr’s testimony on
this particular point would have been unanticipated. Thus, the trial court
correctly prevented Carr from providing this testimony. See N.T. Trial A.M.,
3/12/13, at 120-24.



                                           - 17 -
J-A06035-14 & J-A06036-14



questioning since the trial court would not permit Carr to discuss the motion

of the control arm.   However, CCT’s counsel never actually asked Carr a

question about noise. Because the trial court never ruled on whether Carr

could testify about noise, the court could not have erred on this point. Thus,

the jury heard the evidence Carr would have provided, and the trial court’s

error in precluding certain portions of his proposed testimony was harmless.

Harman, supra.

      In its fourth issue, CCT asserts that the trial court erred in precluding

New York State Trooper Christopher Condon’s deposition testimony relating

to his observation of markings on the road near the scene of the accident.

Trooper Condon reported to the scene of the accident shortly after it

occurred.   Near the accident scene, Trooper Condon observed skid marks

created by a tire moving laterally, which he referred to as “yaw marks.”

However, Trooper Condon did not observe the accident while it occurred and

did not mention the marks in his post-accident report.        Indeed, Trooper

Condon was testifying as a fact witness.       He was not an expert witness

qualified to provide opinion testimony, as he did not have any specific

accident reconstruction training and did not take any measurements,

photographs, or video of the accident scene.

      Since Trooper Condon did not observe the accident and he was not

qualified to provide opinion testimony, his proposed testimony linking the

yaw marks to the accident would have been purely speculative. While yaw

marks could be relevant in the instant matter, the speculative nature of

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Condon’s testimony makes his observation impermissible.         The testimony

may also have been prejudicial and could have confused the issues because

Trooper Condon had not mentioned the yaw marks in his report and he did

not testify at trial.   As the trial court noted, “Plaintiffs would have been

placed in a position where they would have been unable to test the veracity

of the testimony.” Trial Court Opinion, 7/23/13, at 10 n.4. Thus, the trial

court properly excluded Trooper Condon’s deposition testimony regarding

yaw marks and their relation to the accident. Jacobs, supra; Pa.R.E. 403.

      In its fifth issue, CCT argues that the trial court erred in denying CCT’s

motion for a mistrial and in denying CCT’s subsequent motion for

reconsideration. CCT’s mistrial motion was based upon allegedly prejudicial

references Toyota’s counsel made to “lost” evidence in another case.

      A mistrial should only be granted where the event is so inflammatory

and prejudicial that it has undoubtedly influenced the jury and a fair trial

cannot be held.     Commonwealth v. Brown, 676 A.2d 1178, 1184 (Pa.

1996). “The decision to declare a mistrial rests within the sound discretion

of the trial judge and we, as an appellate court will not reverse absent a

flagrant abuse of discretion.”    Commonwealth v. Gains, 556 A.2d 870,

876 (Pa. Super. 1989) (citations omitted).        “Whether a trial court has

abused its discretion by refusing a motion for a mistrial must be determined

by the circumstances under which the statement was made and the

precautions taken to prevent the statement from having a prejudicial effect

on the jury.” Dolan v. Carrier Corp., 623 A.2d 850, 853 (Pa. Super. 1993)

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(citing Clark v. Hoerner, 525 A.2d 377 (Pa. Super. 1987)).       An isolated

reference to something questionable, to which a curative instruction is

provided, is not a basis for the grant of a mistrial.   Commonwealth v.

Jones, 683 A.2d 1181, 1195 (Pa. 1996). Furthermore, jurors are presumed

to follow instructions.   Commonwealth v. Cannon, 22 A.3d 210 (Pa.

2011).

     Toyota’s counsel attempted to question CCT’s engineering expert, Mike

James, about evidence that allegedly had been lost in an unrelated California

case in which James had served as an expert witness for Toyota.          CCT

moved for a mistrial, asserting that the attempt to question James was an

attempt to prejudice the jury by implying that evidence had been “lost” in

the instant matter. However, when Toyota’s counsel tried to ask a question

related to the California case, CCT objected to the line of questioning and

the objection was sustained.     The trial court also instructed the jury to

disregard the question.     At a later point, Toyota’s counsel attempted to

question James about an affidavit he wrote in the same California case. CCT

again objected and the trial court sustained the objection. The trial judge

once more specifically instructed the jury to disregard anything having to do

with the California case.    Because the jury is presumed to follow such

instructions, and the jury did not actually hear any testimony related to the

“lost” evidence, the trial court correctly determined that the questions

Toyota’s counsel attempted to ask did not have a prejudicial effect. Thus,




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the trial court appropriately denied the motion for a mistrial.      Cannon,

supra.

      In its sixth and final issue, CCT asserts that the trial court erred in

refusing to extend discovery deadlines and refusing to allow CCT’s counsel to

conduct a post-discovery inspection of the minivan. CCT asserts that it was

not clear that Plaintiffs would proceed to trial solely on a negligence theory,

rather than a product defect theory, until Plaintiffs produced their expert

reports. These reports were produced by the court-imposed deadline, after

discovery had closed, on July 2, 2012.       CCT had tendered its defense to

Toyota under the assumption that Plaintiffs would advance their product

defect theory. Regardless of the approach CCT believed Plaintiffs would take

at trial, the amended complaints in this matter stated product defect claims

and negligence claims.     Plaintiffs did not surprise CCT with a last-minute

theory of negligence.

      Under the Pennsylvania Rules of Civil Procedure, a party’s change of

counsel shall not “delay any stage of litigation.” Pa.R.C.P. 1012. Moreover,

Philadelphia local rules provide:

         In order to prevent delay of the litigation, an attorney who
         enters an appearance for a party simultaneously with the
         withdrawal of appearance of prior counsel in an action shall
         be deemed to be available to try the case on the assigned
         hearing or trial date. The hearing or trial date will not be
         rescheduled due to the entry of appearance of new counsel
         of any party.




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Phila. Civ. R. 1012.    Here, CCT was represented throughout this matter,

either by Toyota’s counsel or its own.      Further, inspections of the minivan

occurred on multiple occasions during discovery, and CCT was represented

during all of the inspections. CCT urges that it is unfair that Hilsey could not

inspect the minivan and then was precluded from testifying regarding issues

where inspection would have been necessary. Even if this argument were

meritorious, CCT and Toyota both agreed to use Carr as an expert witness,

and he inspected the minivan.         Ultimately, CCT was well aware of the

negligence claims in this action and cannot blame Plaintiffs for its own failure

to prepare adequately during discovery. Accordingly, the trial court did not

err or abuse its discretion in refusing to extend discovery deadlines or to

permit an additional inspection of the minivan.        See Jefferson Bank v.

Newton Associates, 686 A.2d 834 (Pa. Super. 1996).

      Following our review of the record, the briefs, and the relevant law, we

find that the trial court did not err in refusing to grant a new trial.

      Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/2/2014




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