J-A31040-14


                              2015 PA Super 50

HOWARD FLENKE                                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellant

                    v.

RICHARD B. HUNTINGTON

                         Appellee                    No. 467 MDA 2014


              Appeal from the Judgment Entered April 14, 2014
                In the Court of Common Pleas of York County
                  Civil Division at No: 2011-SU-000997-69


BEFORE: BOWES, OTT, and STABILE, JJ.

OPINION BY STABILE, J.:                             FILED MARCH 17, 2015

     Appellant, Howard Flenke, appeals from the April 14, 2014 judgment

entered in favor of Appellee, Richard B. Huntington. We affirm.

     This personal injury action arose from an April 14, 2009 automobile

accident. Appellee stipulated that he was negligent and that his negligence

was a factual cause of Appellant’s injuries. Thus, the parties devoted their

efforts at trial primarily to establishing Appellant’s damages.   The parties’

expert witnesses offered competing views of the extent of Appellant’s

physical injuries, and the relationship between those injuries and the

accident.   Appellant’s expert testified that the accident caused significant

spinal injuries to Appellant requiring several types of surgery.        Those

surgeries, according to Appellant’s expert,       would cost approximately

$75,000.    Appellee’s expert, Dr. Daniel P. Hely (“Dr. Hely”), testified that
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Appellant suffered only strained muscles or sprained ligaments in his neck

and back.   Dr. Hely attributed Appellant’s spinal condition to degenerative

arthritis. A jury awarded Appellant $30,000 after a three-day trial.

      Appellant filed an unsuccessful motion for a new trial followed by this

timely appeal. He argues the trial court improperly excluded portions of his

videotaped deposition from the jury. Specifically, Appellant argues the trial

court erred in sustaining defense objections to lines of questioning probing:

(1) Dr. Hely’s earnings as a “defense industry expert;” (2) Dr. Hely’s

perception that his various employers will not ask him to evaluate people

who are seriously injured; (3) the amount of money Dr. Hely has received

from the insurance company providing Appellee’s defense in this case, which

is allegedly more than Dr. Hely has received from any other insurance

company; and (4) the diagnoses and prognoses Dr. Hely issued in his fifty

most recent expert opinions. Appellant’s Brief at 5-7. Appellant also argues

the trial court erred in preventing Appellant from introducing evidence that

his first party insurance carrier provided benefits in connection with the

accident. Id. at 6.

      We begin with our standard of review.         Trial courts have broad

discretion to grant or deny a new trial. Harman ex rel. Harman v. Borah,

756 A.2d 1116, 1121 (Pa. 2000).      We review the trial court’s decision for

abuse of discretion. Id. at 1122.

           There is a two-step process that a trial court must follow
      when responding to a request for new trial. First, the trial court

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     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 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.

            To review the two-step process of the trial court for
     granting or denying a new trial, the appellate court must also
     undertake a dual-pronged analysis. A review of a denial of a
     new trial requires the same analysis as a review of a grant.
     First, the appellate court must examine the decision of the trial
     court that a mistake occurred.

            At this first stage, the appellate court must apply the
     correct scope of review, based on the rationale given by the trial
     court. There are two possible scopes of review to apply when
     appellate courts are determining the propriety of an order
     granting or denying a new trial. There is a narrow scope of
     review: where the trial court articulates a single mistake (or a
     finite set of mistakes), the appellate court’s review is limited in
     scope to the stated reason, and the appellate court must review
     that reason under the appropriate standard.

            [Conversely,] if the trial court leaves open the possibility
     that reasons additional to those specifically mentioned might
     warrant a new trial, or orders a new trial ‘in the interests of
     justice,’ the appellate court applies a broad scope of review,
     examining the entire record for any reason sufficient to justify a
     new trial.

Id. at 1122-23.

     Instantly, the trial court reviewed Appellant’s assertion of errors and

concluded no error occurred and no new trial was warranted.       Appellant’s

argument focuses solely on the assertions of error listed above, each of




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which involves an evidentiary ruling.            We will confine our analysis

accordingly.

       We review a trial court’s evidentiary rulings for abuse of discretion.

Stumpf v. Nye, 950 A.2d 1032, 1035-36 (Pa. Super. 2008). “An abuse of

discretion is not merely an error of judgment, but if in reaching a conclusion

the law is overridden or misapplied, or the judgment exercised is manifestly

unreasonable, or the result of partiality, prejudice, bias or ill-will, as shown

by the evidence or the record, discretion is abused.”        Id. at 1036.    An

erroneous evidentiary ruling does not warrant a new trial unless it was

“harmful or prejudicial to the complaining party.” Id.

       Pennsylvania law permits impeachment of expert witnesses by

demonstrating their partiality. Smith v. Celotex Corp., 564 A.2d 209, 214

(Pa. Super. 1989) (citing Mohn v. Hahnemann Med. Coll. and Hosp., 515

A.2d 920, 923-24 (Pa. Super. 1986)).               To that end, Pennsylvania

jurisprudence permits parties to take discovery1 regarding an expert

witness’s potential biases and financial incentives. Cooper v. Schoffstall,

905 A.2d 482, 494-95 (Pa. 2006). The Supreme Court observed:

             On the one hand, [the plaintiff] has an interest in the
       availability of some reasonable opportunity to inquire into the
       issue of potential favoritism, in light of the information that she
       has already assembled concerning [the defense expert’s]
____________________________________________


1
    We are cognizant that the Cooper opinion speaks to discoverable
evidence rather than evidence admissible at trial. We nonetheless find the
principles quoted here instructive.



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      medicolegal experience developed at the behest of defense
      attorneys and/or the insurance industry. [The defense expert],
      on the other hand, maintains an interest in being free from
      unduly intrusive and burdensome litigation obligations.
      Additionally, we are cognizant of the broader concern with a
      potential chilling effect to which [the defense expert], and some
      courts, have referred.

Id. at 494. Thus, plaintiffs are permitted to discover evidence that would

“support a reasonable inference that the witness might color, shade, or slant

his testimony in light of the substantial financial incentives.”   Id. at 495.

Said another way, an expert witness in an appropriate case “should be

required to lift his visor so that the jury could see who he was, what he

represented, and what interest, if any, he had in the results of the trial, so

that the jury could appraise his credibility.”     Mohn, 515 A.2d at 924

(emphasis in original).      These principles are deeply rooted in our

jurisprudence. See, e.g. Fleishman v. Reading, 130 A.2d 429, 434 (Pa.

1957) (“An insurance company is not sacrosanct.        It has aninterest in a

lawsuit in which it may be called upon to pay all or at least a part of a

judgment if against the insured.    That such interest may at times cause

those who represent it to offend against the proprieties is not without the

bounds of reason.”).

      In any event, the key issue, as stated in Mohn, is the expert’s

credibility.   Thus, we have observed that a point exists “beyond which

inquiry is prejudicial and too intrusive, and serves only to divert the case




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into collateral matters.” J.S. v. Whetzel, 860 A.2d 1112, 1120 (Pa. Super.

2004).

       Dr. Hely testified by videotaped deposition.2           As described above,

defense counsel lodged objections to questions probing Dr. Hely’s financial

incentives and biases, and Appellant now argues the trial court erred in

excluding evidence from the jury based on those objections.3              Appellant

further argues the trial court’s rulings were erroneous and prejudicial. For

context, we will summarize relevant portions of Dr. Hely’s testimony that the

trial court admitted into evidence.            Dr. Hely admitted he never treated

Appellant, and that his one meeting with Appellant lasted only thirty

minutes. N.T. Deposition, 1/16/14, at 25, 27. He further admitted he was

hired to provide an opinion to be used in this litigation, and that he was paid

for his time. Id. at 26, 38-39. Dr. Hely agreed that he earned substantial

income providing reports to be used in litigation, including $73,990 for

examination      and    $40,500      for   depositions   in   2010,   $157,040   for

examinations and $18,250 for depositions in 2011, and $111,800 for

examinations and $43,900 for depositions in 2012.                Id. at 39-40, 42.
____________________________________________


2
   Appellant cross-examined Dr. Hely based on discovery documents
Appellant obtained pursuant to our Supreme Court’s opinion in Cooper v.
Schoffstall, 905 A.2d 482 (Pa. 2006).
3
   The trial court addressed the admissibility of the disputed portions of Dr.
Hely’s testimony after hearing argument at trial prior to playing Dr. Hely’s
deposition for the jury. The trial court sustained all objections Appellee
raised during the deposition. N.T. Trial, 1/21-24/14, at 93-109.



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Approximately 85 to 90 percent of Dr. Hely’s expert reports are issued on

behalf of defense attorneys. Id. at 41, 109. Dr. Hely admitted he would be

less likely to be rehired as an expert if he issued a report that was unhelpful

to the entity that hired him. Id. at 60. He also admitted he was trying to

grow the expert testimony portion of his business. Id. at 60, 109.

      During closing argument, Appellant’s counsel emphasized these facts

at length.   N.T. Trial, 1/21-24/14, at 186-190.      Specifically, Appellant’s

counsel highlighted the amounts of money Dr. Hely made from 2010 through

2012 (Id. at 186-87); the amount of Dr. Hely’s income attributable to

providing expert opinions and testimony (Id. at 187); the fact that 85 to 90

percent of his expert witness fees come from defense attorneys (Id.); the

fact that Dr. Hely was less likely to be retained as an expert if he gave an

opinion unfavorable to the party that retained him (Id. at 187-88); the fact

that Dr. Hely’s opinion was dated the same day he examined Appellant from

4:40 to 5:10 p.m., and therefore, according to Appellant, was predetermined

and formulaic (Id. at 188-89). Appellant’s counsel also noted that Dr. Hely

initially underestimated the number of times per year he prepared expert

reports on behalf of defendants. Id. at 189.

      In summary, Appellant offered substantial evidence from which the

jury could infer that Dr. Hely had an incentive to slant his expert report and

deposition testimony in favor of Appellee. Based on the evidence admitted

at trial, the jury had an opportunity to assess Dr. Hely’s motives and


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J-A31040-14


credibility in light of the income he received and the frequency with which he

testified as a defense expert.

      Appellant argues, nonetheless, that the trial court erred in excluding

evidence that Dr. Hely received even more income as a defense expert

witness than he admitted. The trial court sustained Appellee’s objections to

this line of questioning, reasoning that a miscalculation or misrepresentation

by Dr. Hely concerning his income, even if one occurred, was unnecessary to

the jury’s assessment of Dr. Hely’s credibility.

            Dr. Hely was asked directly about the economic impact and
      he freely admitted not only that he made a lot of money but that
      further he was trying to grow that portion of his business to
      obtain even more money.         He also acknowledged that the
      insurance company was expecting a favorable report and that if
      he failed to deliver a favorable report he would be less likely to
      be hired by the insurance company in the future.

Trial Court Opinion, 5/14/14, at 2-3. We discern no abuse of discretion in

the trial court’s reasoning. The jury had sufficient information to assess Dr.

Hely’s potential motives and biases, and to permit defense counsel to

conduct a detailed audit of Dr. Hely’s finances would “divert the case into

collateral matters.” Whetzel, 860 A.2d at 1120.

      Next, Appellant argues the trial court erred in excluding a line of

testimony wherein Dr. Hely stated that he does not expect to see seriously

injured persons when he is working for a defense attorney or insurance

company because they typically do not litigate cases where an acute injury

is obvious. Appellant argues this testimony would have exhibited Dr. Hely’s



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pre-determined bias against Appellee. Once again, we discern no abuse of

discretion in the trial court’s decision to exclude this evidence.    The jury

could have inferred Dr. Hely’s bias against Appellee from his admissions that

insurance companies expect favorable reports and that Dr. Hely was hoping

to grow the expert testimony portion of his business.        Further, Appellant

relied on the date and time of Dr. Hely’s examination of Appellant and the

date of his expert report to argue that Dr. Hely’s expert report was written in

large part before he even met Appellant.         Additional evidence of bias or

predetermined hostility to Appellant’s case was cumulative, and therefore

properly excluded under Pa.R.E. 403.4

        Appellant next argues the trial court erred in excluding a line of

testimony wherein plaintiff’s counsel examined him about the history of his

relationship with the insurance company that paid for his services in this

case.    Appellant sought to establish that Dr. Hely received a substantial

amount of his expert testimony income from the insurance carrier providing

Appellee’s defense in the instant case. The trial court disallowed this line of

____________________________________________


4
    That rule provides:

        The court may exclude relevant evidence if its probative value is
        outweighed by a danger of one or more of the following: unfair
        prejudice, confusing the issues, misleading the jury, undue
        delay, wasting time, or needlessly presenting cumulative
        evidence.

Pa.R.E. 403 (emphasis added).



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questioning for concern that it would reveal that the defendant had liability

insurance that could cover the alleged injury. Rule 411 of the Pennsylvania

Rules of Evidence provides:

             Evidence that a person was or was not insured against
     liability is not admissible to prove whether the person acted
     negligently or otherwise wrongfully. But the court may admit
     this evidence for another purpose, such as proving a witness’s
     bias or prejudice or proving agency, ownership, or control.

Pa.R.E. 411.

     Appellant argues the evidence of Dr. Hely’s longstanding relationship

with the insurer was relevant to demonstrate Dr. Hely’s bias.         Appellant

relies on O’Donnell v. Bachelor, 240 A.2d 484 (Pa. 1968), for the

proposition that failure to disclose the relationship between a key witness

and a defendant insurance company constitutes reversible error.              In

O’Donnell, the defendant’s vehicle hit the plaintiff while the plaintiff was

walking across a street.   Id. at 484.      While in the hospital, the plaintiff

allegedly told an investigator he saw defendant’s vehicle coming and ran

across the street anyways. Id. at 485. Our Supreme Court ruled the trial

court erred in declining to admit evidence that the investigator worked for

the defendant’s insurer. Id. at 486-88.

     We believe the circumstances of O’Donnell are far removed from the

instant case.    There, the insurer’s investigator procured an alleged

statement from the plaintiff while the plaintiff was “harnessed to his bed,

saturated with narcotics and sedatives and undergoing mental torture as to



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when, if ever, he would ever walk again.”            Id. at 486.   The defense

successfully admitted the alleged statement into evidence without identifying

the allegiance of the investigator who took it.

      No such shenanigans took place instantly and, as we have discussed

above, the jury was well aware of Dr. Hely’s potential biases and motives.

Nothing in O’Donnell compels the outcome Appellant seeks, and we discern

no abuse of discretion in the trial court’s decision to exclude evidence of Dr.

Hely’s relationship with the insurance company providing Appellee’s defense.

      We are cognizant that Appellant wished to identify the insurer only as

a “payor.”      Arguably, this obviates the concerns attendant to the

identification of a liability insurer. Nonetheless, we fail to see how this line

of questioning would have added anything significant to the substantial body

of evidence establishing Dr. Hely’s ties to the defense bar. We discern no

abuse of discretion in the trial court’s ruling.

      Appellant also argues the trial court erred in excluding evidence that

many of Dr. Hely’s fifty most recent expert reports offered diagnoses similar

to what he offered in the instant case.            That is, Dr. Hely commonly

attributed the plaintiffs’ symptoms to sprains, strains, or arthritis rather than

a significant acute injury.    Appellant argues this evidence establishes Dr.

Hely’s preconceived and biased view of the patients he will examine on

behalf of a defense attorney or insurance company.         Appellant notes that

Whetzel permits evidence relevant to an expert’s bias.


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      Whetzel does indeed hold that litigants are permitted to establish the

potential bias of an expert witness. Whetzel, 860 A.2d at 1115. Whetzel

also teaches that evidence impeaching an expert witness must be relevant

to the “main issue before the court.” Id. Also, as noted above, Whetzel

teaches that impeachment of an expert must not divert the litigation into a

trial on collateral matters.   Id. at 1120.   As a result, the Whetzel Court

vacated an order directing the expert witness to produce income documents

not related to the ongoing litigation. Id. at 1121.

      Here, we discern no abuse of discretion in the trial court’s decision to

exclude from evidence a detailed examination of Dr. Hely’s fifty most recent

expert reports. The trial court reasoned such evidence was cumulative and

unnecessary, given Dr. Hely’s candid admission that he believes his

employers expect favorable reports and that he hopes to continue to grow

his business as an expert witness.

      Appellant’s final assertion of error is that the trial court abused its

discretion in excluding evidence that Appellant’s first party insurance carrier

has provided coverage for plaintiff’s injuries. Appellant argues the jury was

entitled to know that Appellant’s insurance company assessed the accident

and determined Appellant suffered acute injuries stemming from the

accident. Appellant notes that Pa.R.E. 411 applies only to liability coverage,

and does not prohibit evidence related to a plaintiff’s receipt of benefits from

his own carrier. Appellant cites no law in support of admitting evidence of


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the first party insurer’s decision.   Rather, he seems to rely solely on the

absence of any prohibition similar to Rule 411.

      The trial court reasoned as follows:

            The First Party carrier’s payment is not binding on the
      Defendant. It is unknown what information the First Party
      carrier had when it made its decision or how much, if any,
      additional information the Defendant’s insurance company had
      sometime later when it made its decision. It is simply comparing
      apples to oranges and no significance can be attributed to the
      decision of the First Party carrier to pay its likely less significant
      part of the total cost of the injuries.

Trial Court Opinion, 5/14/14, at 3-4.

      We agree with the trial court’s analysis, and based on that analysis

any evidence pertaining to Appellant’s insurer’s coverage decision was

irrelevant to the decision before the jury.    The jury owed no deference to

Appellant’s insurer’s decision and, as the trial court pointed out, the jury

would have no means of knowing what evidence the insurer considered prior

to making the coverage decision. The trial court acted within its discretion in

excluding evidence of Appellant’s insurer’s coverage decision.

      In summary, we have concluded that the trial court acted within its

discretion concerning each of the disputed evidentiary rulings.         As such,

Appellant is not entitled to a new trial.

      Judgment affirmed.




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J-A31040-14


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/17/2015




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