J. A21024/16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


JOIE DIGIOVANNI                            :      IN THE SUPERIOR COURT OF
               Appellant                   :           PENNSYLVANIA
                                           :
                                           :
                                           :
                  v.                       :
JOHN B. MURPHY                             :
                                           :
                                           :      No. 2902 EDA 2015

          Appeal from the Judgment Entered September 15, 2015
            In the Court of Common Pleas of Philadelphia County
          Civil Division at No(s): November Term, 2013 No. 01291

BEFORE: Bender, P.J.E., DUBOW, J., and MUSMANNO, J.

MEMORANDUM BY DUBOW, J.:                         FILED SEPTEMBER 22, 2016

      Appellant, Joie DiGiovanni, plaintiff below, appeals from the Judgment

entered in the Philadelphia County Court of Common Pleas on September

15, 2015, in favor of Appellee, John B. Murphy, defendant below, following a

jury trial. After careful review, we affirm.

      We summarize the facts, as gleaned from the detailed trial court

opinion, as follows. On February 5, 2012, Appellant was the passenger in a

car, which was rear-ended. Appellee was the driver of the striking vehicle,

and was travelling at approximately 45 miles per hour.      Appellant did not

wait for an ambulance to take her to the hospital following the accident, but

rather travelled there in her boyfriend’s car.

      Appellant presented at the hospital with a scrape on her chin and a cut

lip, and complaining of pain in her ankles, wrist, leg, hip, neck, and back.
J. A21024/16


Hospital staff performed x-rays and a C-T scan, both of which came back

negative. Appellant subsequently experienced swelling and bruising.

      Appellant sought treatment for her injuries from five different medical

professionals.    Ultimately, she received a diagnosis of fibromyalgia and

rheumatoid arthritis.     Her doctor prescribed Appellant the drug Humira,

which Appellant described as a “miracle drug.” See Trial Ct. Op., 2/25/16,

at 1-3 (citations omitted).

      On November 14, 2013, Appellant filed an arbitration Complaint

against Appellee raising claims arising from injuries she alleged she

sustained in the February 4, 2012 collision. Specifically, Appellant claimed

that, at the time of the accident she suffered from asymptomatic

fibromyalgia     and   rheumatoid   arthritis,   which   conditions   were   made

symptomatic by the trauma of the accident. Appellee filed an Answer with

New Matter on October 20, 2014.          That same day, the arbitration panel

entered an award for Appellant in the amount of $41,500.

      Appellee filed an appeal from the Arbitration Award on October 30,

2014. A three-day jury trial commenced on August 10, 2015. Following the

trial, the jury concluded that Appellee’s negligence was not a factual cause

of Appellant’s injuries, and, thus, returned a verdict for Appellee on August

12, 2015.

      Appellant filed a Post-Trial Motion on August 21, 2015, in which she

alleged the jury’s verdict was against the weight of the evidence and that



                                      -2-
J. A21024/16


the court erred in permitting the jury to receive medical expert reports and

internet articles produced by Appellee’s counsel in cross-examination of

Appellant’s expert witness. On August 25, 2015, Appellee filed an Answer to

Appellant’s Post-Trial Motion.   Appellant filed a “Reply in Support to Post-

Trial Motion” on September 1, 2015.

     Appellant filed a Notice of Appeal from the jury’s August 12, 2015

verdict in favor of Appellee on September 4, 2015.1 The trial court denied

Appellant’s Post-Trial Motion on September 14, 2015, and simultaneously

entered Judgment in Appellee’s favor.2     Appellant and the trial court have

complied with Pa.R.A.P. 1925.

     Appellant raises the following issues for our review:

        1. Whether the jury’s finding that [Appellee’s] negligence
        was not a factual cause of the injuries sustained by
        [Appellant] was against the weight of the evidence
        requiring the court to remand for a new trial.

        2. Whether the court erred in sending portions of hearsay
        internet articles, which directly addressed the medical

1
   We note that Appellant’s September 4, 2015 Notice of Appeal was
premature as a final order had not yet been entered in the case. See PA
Energy Vision, LLC v. South Avis Realty, Inc., 120 A.3d 1008, 1012 n.3
(Pa. Super. 2015) (an appeal of a final order in a civil case lies from the
entry of judgment). However, the trial court entered judgment following
denial of Appellant’s Post-Trial Motion on September 14, 2015, thus
perfecting Appellant’s appeal. See Prime Medica Assocs. V. Valley Forge
Ins., 970 A.2d 1149, 1154 n.6 (Pa. Super. 2009) (a final judgment entered
during the pendency of an appeal is sufficient to perfect appellate
jurisdiction).
2
 The court mailed the parties Pa.R.C.P. 236 Notice of Entry of Judgment on
September 15, 2015.



                                     -3-
J. A21024/16


         causation issues and therefore likely [a]ffected the
         outcome of the case, into the jury room requiring the court
         to remand for a new trial.

Appellant’s Brief at 6.

      In her first issue, Appellant claims that the jury’s conclusion that

Appellee’s negligence was not a factual cause of the harm Appellant suffered

was against the weight of the evidence where neither Appellee’s negligence,

nor the fact that Appellant now suffers from fibromyalgia and rheumatoid

arthritis, are in dispute. Id. at 21, 24. Appellant avers, that “[i]n light of

the high speed collision together with the objective and undisputed evidence

of injury, the verdict was against the weight of the evidence and justice

requires a new [t]rial.” Id. at 24.

      When considering challenges to the weight of the evidence, we note

that, “[t]he weight of the evidence is exclusively for the finder of fact[,] who

is free to believe all, none or some of the evidence and to determine the

credibility of witnesses.”     Commonwealth v. Talbert, 129 A.3d 536, 545

(Pa. Super. 2015).        “A jury is entitled to believe all, part or none or the

evidence presented…. A jury can believe any part of a witness’ testimony

that they choose, and may disregard any portion of the testimony that they

disbelieve.” Martin v. Evans, 711 A.2d 458, 463 (Pa. 1998) (citation and

quotation omitted).        Where a jury has made credibility determinations

regarding the testimony and evidence presented, those determinations are

rarely overturned.        Armbruster v. Horowitz, 744 A.2d 285, 287 (Pa.



                                        -4-
J. A21024/16


Super. 1999).    Further, “[i]n order for a defendant to prevail on a challenge

to the weight of the evidence, the evidence must be so tenuous, vague and

uncertain that the verdict shocks the conscience of the court.”        Talbert,

supra at 546 (internal quotation marks and citation omitted).

      The trial court cogently and comprehensively addressed Appellant’s

weight of the evidence claim in its Rule 1925(a) Opinion. Accordingly, with

respect to this issue, we affirm on the basis of the trial court’s well-reasoned

Opinion. See Trial Ct. Op. at 5-7.

      In her second issue on appeal, Appellant claims the trial court erred in

permitting limited portions of internet articles from the Mayo Clinic, the

National Institute of Health (“NIH”), and the Cleveland Clinic about

rheumatoid arthritis into the jury room. Appellant’s Brief at 24. Appellant

claims that it was inappropriate to provide the jury with these documents

because counsel had not moved them into evidence and they are hearsay

documents.3 Id.

      At trial, both parties’ expert witnesses testified at trial by way of

videotaped deposition. The transcripts of those depositions, and the internet

3
  To the extent that Appellant challenges the trial court’s decision to permit
the jury to view the articles during deliberation on hearsay grounds, we find
this argument waived. Our review of the record, including the deposition
transcripts of Dr. Whalen and Dr. Derk, and the trial transcript, indicates
that Appellant did not preserve this issue by making a specific, timely
objection before the trial court. See Boykin v. Brown, 866 A.2d 1264,
1267 (Pa. Super. 2006) (holding that in order to preserve the application of
a hearsay objection for appellate review, that specific exception must first be
raised before the trial court).



                                     -5-
J. A21024/16


articles used by counsel to question the witnesses attached thereto, were

entered into evidence.

      During deliberation, the jury asked the court to send back to the

deliberation room the articles used by Appellee’s counsel during cross-

examination of Appellant’s expert, Dr. Whalen.        Following colloquy with

counsel, and over Appellant’s objection that the documents had not been

moved into evidence, the trial court permitted the jury to receive “only the

relevant pages [of the internet articles] that were touched upon from the

testimony by the two experts[, Drs. Whelan and Derk].”4 N.T., 8/12/15, at

68.

      Notwithstanding Appellant’s claim on appeal that the articles were not

moved into evidence, our review of the record confirms that, “the articles

were attached to Dr. Whalen’s deposition transcript, Exhibit P-13, and were

admitted into evidence [Exhibits D-5, D-7, and D-8].” Trial Ct. Op. at 8.

      Moreover, Appellant represented to the court during an in camera

discussion that the articles used by Appellee’s counsel to cross-examine Dr.

Whalen were “part of the transcript[,]” and “part of what we introduced as

Dr. Whalen’s testimony.       We have the whole transcript and the tape

introduced.    And, in fact, [the NIH article] is Exhibit D-5 of [Appellant’s]

Exhibit, I think it’s 13.”   N.T., 8/11/15, at 75-76.      Appellant’s counsel


4
 Pages 1, 3, 4, and 9-11 of the National Institutes of Health article, pages 1,
2, and 7 of the Mayo Clinic article, and page 1 of the Cleveland Clinic Article.



                                     -6-
J. A21024/16


conceded that he “moved [into evidence] the entire transcript and this was

attached to the transcript.” Id. at 76.

      During a jury trial, the court “may make exhibits available to the jury

during its deliberations.”    Pa.R.C.P. 223.1(d)(3).    The trial court has

discretion to determine which exhibits should be permitted to be viewed by

the jury during deliberations.    Wagner by Wagner v. York Hosp., 608

A.2d 496, 503 (Pa. Super. 1992) (noting that “the trial court has the

discretion to determine which exhibits should be permitted to go out with

the jury.”).

      Accordingly, the trial court did not abuse its discretion in permitting

the jury to view the articles during deliberation.

      Judgment affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/22/2016




                                      -7-
J. A21024/16




               -8-
                                                                                                Circulated 08/31/2016 02:49 PM




                              PHILADELPHIA COURT OF COMMON                              PLEAS
                                       CIVIL TRIAL DIVISION


      JOIE DIGIOVANNI,                                                     November Term, 2013
                                                                           No. 1291
                  v.
                                                                           Superior Court Docket Ni?<>.                r},.,.

      JOHN B. MURPHY                                                       2902 EDA 2015          ~:_,_.·
                                                                                                                  tt,c            . .,,
                                                                                                                                  C:T\


      Sarmina, J.                                                                                                (·;·            r-..
                                                                                                                                 C:,)
      February 25, 2016                                                                                         ,~:..·+'         r-s
                                                                                                                , ..             o,
                                                                                                             c.
                                                        OPINION
                                                                                                         r ..
    PROCEDURAL HISTORY:
                                                                                                         --
                                                                                                         -i .

                                                                                                        s.
            On August 12, 2015, following a jury trial before this Court, verdict was entered in favor of

John .13. Murphy (hereafter, the defendant), and against Joie DrGiovanni (hereafter, the plaintiff).'

    Timely post-trial motions were filed on August 21, 2015. On September 1, 2015, the plaintiff filed a

    notice of appeal.' Subsequently, on September 14, 2015, this Court denied the plaintiff's post-trial

    motions.

    FACTS:

            On February 4, 20l2, at around 6:00 P.M., the plaintiff was a passenger in her friend's

vehicle, traveling cast on Interstate 76 towards Center City Philadelphia. Notes of Testimony (N.T.)

8/10/15 at 46, 49-50. The plaintiff and her friend were facing each other talking, as they were stuck

in traffic, when the defendant's vehicle collided with the vehicle in which the plaintiff was traveling.

Id. at 50-S 1. The defendant was driving a sport utility vehicle (SUV), at approximately 45 miles per

hour, when he was approaching the bend in Interstate 76 where Roosevelt Boulevard and City Line




I
    The ph1intiff was represented by James Famiglio, Esquire, and the defendant was represented by Ronald 1-farrero,
Esquire.

2 TI1is Court was instructed by the Superior Court that the plaintiff's premature appeal was to be considered as if it were
timely filed after the denial of the plaintiffs post-trial motions.
                                                                                  Digiovanni    Vs Murphy-OPFLD

                                                                                   111111111 I II 1111 I 111111111              If Ill
 Avenue meet. Id. at 125. The defendant did not immediately notice that the cars in front of him

 were stopped, and consequently he "rear-ended" the vehicle the plaintiff was traveling in, which was

 in front of him.   kl   The car the plaintiff was traveling in hit the car in front of it, and that car hit

 the car in front of it as well. Id. at 51.

         A frcr the collision, the defendant exited his vehicle, walked over to the plaintiff, and risked      if

 eve1:7onc was okay. Id. at 51. The plaintiff stated that she was not okay, and called her boyfriend to

come to the scene of the accident.       hi, at 52. The police also arrived at the scene. Id. at 5l. The

plaintiff's boyfriend then rook her to Lankenau Hospital; she did not wait for an ambulance to

arnve. Id. The defendant was able to drive his vehicle away from the accident scene. Id. at 132.

         When the plaintiff arrived at the hospital, she was complaining of pain in her ankles, wrist,

leg, hip, neck, back. Id. at 53. She also presented with a scrape on her chin, and a busted open lip.

Id. The hospital staff performed x-rays and a CT scan, both of which came back negative. Id. at 54.

The plaintiff was not admitted to the hospital, and was given Tylenol with codeine. Id. at 54-55.

That same    day, the plaintiff left the hospital and immediately traveled with her boyfriend to her

parent's shore house in Margate, New Jersey. N.T. 8/10/15           at 54-55.

         \Xlhco the plaintiff returned from the shore, she began to swell and bruise. hi at 55. 'Thus,

the plaintiff sought treatment from Dr. Brent \Xleinennan, who treats people who have been in car

accidents.   Id. at 56. 13ecause she did not like the area in which Dr. Wcinerman's office was located,

the plaintiff sought treatment from a different doctor about a week later - Dr. Harding, a

chiropractor.   Id. at 57. After being seen by Dr. Harding, the plaintiff then went to her family

doctor, Dr . Alexander Ricciutti, who worked at Medical Rehabilimtion           Center of Philadelphia, with

complaints of swollen wrists, arms, ankles, and a changing color sensation in her hands.          Id. at 59.

These symptoms never subsided following the motor vehicle accident the plaintiff was involved in,

and they were not controlled by medication.       kl   at 60.


                                                       2
           Dr. Ricciutti referred the plaintiff to Dr. Yang, a physiatrist, who took an ElvfG and then

 referred the plaintiff to a rheumarologist,        N.T. 8/ t 0/ 15 at 71. The plaintiff went to Main Line

 Rheumarology, where she was diagnosed with fibromyalgia and rheumatoid arthritis.                       Id. at 72. The

 plaintiff was treated with the drug Humira, and a number of other drugs,' to which she was

 responsive.    Td. at 73. The plaintiff testified that she injects herself in her stomach or her thigh with

 Humira every two weeks.         Id.

          A ftcr treating at Main Line Rheumatology for rough I}' one year, the plaintiff began seeing a

 different rheumatologist - Or. Thomas Whalan - who was treating the plaintiff at the time of trial.

 Id. at 77- 78. Dr. Whalan kept the plaintiff on the same drugs that she was previously prescribed,

 and the plaintiff testified that her symptoms arc controlled, particularly by the Humira, which she

 described as a "miracle drug." Id. at 79-81.

LEGAL ANALYSIS:

          The plaintiff raises two issues on appeal:

 I. The verdict was against the weight of the evidence and against longstanding Pennsylvania law.

2. The Court erred in permitting the jury to receive in the jury room all expert medical reports and
internet articles produced by defense counsel in the cross-examination of plaintiff's expert.

     1) The verdict was against the weight of the evidence and against longstanding
        Pennsylvania law.

         The plaintiffs    first claim is that the verdict was against the weight of the evidence and

against longstanding Pennsylvania         law. The plaintiff claims that there was no dispute that the

plaintiff sustained injuries to her wrists and ankles as a direct result of this motor vehicle accident,




'The plaintiff restified th:lt while under the care of ~fain Line Rhcumatology, she was prescribed Humira, Methatrexare,
Cyclobcnzaprine, as well as folic add and a muscle relaxer. i'\ .T. 8/ 10/1 S at 77- 79.


                                                            3
    and thus the plaintiff was entitled to damages for those injuries.'             Although the defendant's

    negligence was not disputed in this case, the plaintiffs injuries, as well as the causation of those

    injuries, was disputed, and the medical experts for both sides offered conflicting testimony as to

    causation.   As it is within the sole province of the jury to make credibility determinations regarding

    conflicting testimony, the verdict was not against the weight of the evidence, and this claim fails.

             Issues of credibility are for the jury to determine, and factual findings are rarely overturned

    where a jury has made credibility determinations regarding the testimony and evidence presented.

 Annbrustcr      v. Horowitz, 744 1\.2d 285, 287 (Pa.Super. 1999), affd, 813 A.2d 698 (Pa. 2002).

            Credibility     determinations are within the sole province of the jury. 'A jury is entitled to
            believe all,    part or none of the evidence presented .... A jury can believe any part of a witness'
            testimony      that they choose, and may disregard any portion of the testimony that they
            disbelieve.'    Randt, at 234, 671 A.2d at 233 (citation omitted).

 Martin v. Evans, 71 ·1 A.2d 458, 463 (Pa. 1998).

The standard by which a trial court should review a weight of the evidence claim is as follows:

            This Court has repeatedly emphasized that it is not only al J court's inherent fundamental
            and salutary power, but its duty to grant a new trial when it believes the verdict was against
            the weight of the evidence and resulted in a miscarriage of justice. Although a new trial
            should not be granted because of a mere conflict in testimony or because the [court] on the
            same facts would have arrived at a different conclusion, a new trial should be awarded when
            the jury's verdict is so contrary to the evidence as to shock one's sense of justice and the
            award of a new trial is imperative so that right may be given another opportunity to prevail.
            Ma1111110/'t.tO ,,. 1818 M(lrkel Pad11e1:chip, 734 A.2d 23, 28 (Pa.Supcr.1999) (citations omitted).


Armbruster, 74·1 A.2d at 287.




I
  Tn support of this proposition, the plaintiff cites to Cn:;selli v. Powlen, in which rhe Superior Court found that the
jury's award of zero damages was against the weight of the evidence presented at trial. 937 ,-\.2d 1137, 1140 (Pa.Super.
~007). In Casselli, the plaintiff \V<IS injured when he srumbled and fell oil a sidewalk outside of the defendant's home.
hl .11 I 138. It was undisputed at trial that the plaintiff fell and broke his foot, and there was no dispute that the medical
expenses incurred by the plaintiff were reasonable. hl The jmy found chat the defendant was 50% negligent, that the
plaintiff was 50% negligent, and rhat each party's negligence was a substantial factor in causing the plaintiff's injuries. lrl.
at 1139. Nevertheless, the jury did not award damages to the plaintiff I.Ii The Superior Court concluded that the ju1y's
verdict of zero d:\mages. when there was no dispute as to the defendant's negligence and causation was ngainst die weight
of the evidence, and remanded die case for :1 new trial ,1~ to damages. Id, at 1141. Casselli, however, is not on point, us
there was ,1 dispute in the instant case .1$ to the causatlon oi the pl:lintiffs injuries, and the jmy ultimately found rhar rhe
plnintift's injuries were not caused by rhe defendant's negligence.

                                                               4
           In Martin, the plaintiff brought a personal        injury lawsuit against a truck driver whose tractor-

 trailer truck backed into the plaintiff when pulling out of a parking spot at a rest stop. 711 A.2d at

 460 (Pa. 1998). The jury returned a verdict in favor of the defendant, and the trial court granted a

 new trial based on a determination that the verdict was against the weight of the evidence.             Id. at

461.   Because there was conflicting        testimony presented by the parties regarding the defendant's

negligence, and the jury made a credibility determination regarding such testimony, our Supreme

Court held that the trial court could not usurp the jury's factual determination that the defendant

was not negligent.    Id. at 459.     Where there arc conflicting facts in evidence,     it is for the jury to make

credibility determinations regarding the evidence, and the trial court ma)' only reverse the jury's

verdict where the verdict was "so contrary to the evidence so as to shock one's sense of justice."                hi

at 463. As there was conflicting testimony regarding the defendant's             negligence, our Supreme Court

found that there was equally enough evidence to support a finding in favor of the defendant, and

reinstated the jury's verdict.      Id.

           At trial, the videotaped depositions of the plaintiffs expert, Dr. Thomas Whalen, and the

defendant's expert, Dr. Chris Derk, were played for the jury. Dr. \XlhaJen, a board certified

physician in rheumatology,       began treating the plaintiff in    July of 2013. Dr. \'Xlhalen Deposition,

4/23/15,    at 10-11, 23. In addition to treating the plaintiff for two years, Dr. Whalen reviewed the

following materials in order to prepare a report for the plaintiff:         medical records and images from

J .ankenau Hospital, Dr. \Xleinerman,        Dr. Harting, Main Linc Rheumatology, and photographs of the

plaintiff's ankles and feet.   hl    at 25-26.   Having reviewed these materials and treated the plaintiff,

Dr. Whalen opined, ro a reasonable degree of medical certainty, thnt as a result of the motor vehicle

accident the plaintiff was involved in, the plaintiff suffered "cervical and lumbar strains and sprains,

strains and sprain of her ankles, post-traumatic onset of rheumatoid arthritis, post-traumatic

fibromyalgia syndrome, and possible RSD, which is reflex sympathetic              dystrophy."   Id. at 27-28.     Dr.


                                                          5
 Whalen testified that by post-traumatic, he meant that the rheumatoid arthritis and fibromyalgia

 occurred as a result of some sort of trauma, particularly the motor vehicle accident in which the

 plaintiff was involved.    Id. at 36-37.

           Although Dr. Whalen testified that the plaintiffs injuries were a direct result of the motor

 vehicle accident, Dr. \X'halen admitted that the causes of rheumatoid arthritis arc not well-known.

 Id. at 41. Later on in his deposition, Dr. Whalen clarified that what he really meant was that the

 rheumatoid arthritis was triggered by the motor vehicle accident, as no one really knows the "full

 cause" of rheumatoid arthritis.    Id. at 62. AdditionnUy, Dr, Whalen testified that, aside from his

 personal experiences with post-traumatic onset of rheumatoid arthritis, there are no "well-controlled

double-blinded studies to prove it." Dr. Whalen Deposition, 4/23/15, at 42. Dr. Whalen also

testified that the plaintiff could have had genetic susceptibility to rheumatoid arthritis.   Id. at 92-93.

           Dr. Derk, a board certified physician in rheumarology, examined the plaintiff and opined to

a reasonable degree of medical certainty that the plaintif f's rheumatoid arthritis was not caused by

the car accident that was the subject of this trial. Dr. Derk Deposition,    4/29/15, at 8, 24~25. In

coming to his conclusion, Dr. Derk reviewed all of the documents provided to him: the plaintiff s

deposition transcript, photos of the plaintiff, medical records and images from \'Xleincrnrnn Pain and

\'(fellness, Lankenau Hospital, Main Line Rhcumatology,      Open iv1RI Center,Jefferson Imaging,

Whalen Rheumatology        Group, Mitchell Harding, D.C., and Penndel Rehab, as well as Dr. Whalen's

report.   Id. at 26-27. Dr. Derk examined the plaintiff himself on july 10, 2014. Id. at 27-28. Upon

examining the plaintiff, Dr. Derk found no abnormalities:

          So when I examined the patient, this was July 10 of 2014, on that examination, that day, she
          presented with her mother. Her vitals were normal. She had slight tenderness over the
          trochantcric and anserine bursas. There was full range of motion of her joints, with no
          swelling of the joints. There was no limitation in motion of the joints. There was [sic] no
          joint deformities. Patient did not have rheumatoid nodules. There was no warmth or
          redness or fullness of nny of her joints. She had slight paraspinal muscle pain in the cervical
          region. Her grip was very good in both hands. She had good range of motion of her ankles,
          knees, toes, hips, lower back, cervical spine, elbows, shoulders, hands, and wrists. I

                                                     6
            examined her for carpal tunnel. She did not have that. I examined her for swollen lymph
            nodes or thyroid enlargement. She did not have that. I looked for oral ulcers and decreased
            moisture in her gums or her mouth and she did not have any issues with that. Her lung
            fields were dear. Her cardiovascular exam was normal. Because of the history of possible
            Raynaud's, I looked at the capillaries with a nailfold capillaroscopy and the nailfold capillaries
            were normal. ... Her motor exam was good. The only abnormality that I could find was she
            had a venous malformation of her left shoulder chat the mother told me was there since
            birth, which was a birthmark on the left shoulder. Otherwise, the neurological examination,
            as well as the motor examination, was completely normal.

Id. at 28-30.

            Dr. Derk questioned the plaintiffs diagnosis of rheumatoid arthritis altogether,    because the

plaintiffs bone scan was normal, and blood work that was done before his examination             of the

plaintiff lacked inflammatory markers that are typically elevated in patients with rheumatoid arthritis.

Id. at 39-40.    Dr. Derk testified that there is no scientific data or research to suggest that rheumatoid

arthritis can be caused by a car accident, and testified that Dr. Whalen's term, "post-traumatic

rheumatoid arthritis," is not a term used or defined by the American College of Rheumatology.                hl
at 30-31.     Contrarily, Dr. Derk testified that, although there is no known cause for rheumatoid

arthritis, there are certain risk factors: genetics, being female, being young, and smoking tobacco.

Id. at 31, 33. Upon familiarizing himself with the plaintiff's history, Dr. Derk learned that the

plaintiff possessed some of the risk factors - her grandmother       had rheumatoid arthritis, and,

although she had recently quit, the plaintiff had smoked for about five years.       Dr. Derk Deposition,

4/29/15 at at 3L Dr. Derk also testified that there is no known cause for ftbromyalgia.          1J.L   at 37.

        Having heard conflicting testimony from both experts regarding the causation of the

plaintiff s injuries, the jury made a credibility determination,   and found the testimony of the defense

expert, Dr. Derk, to be more credible. As this determination was within the sole province of the

jmy, and there was evidence presented at trial ro support this conclusion, the verdict was not against

the weight of the evidence, and this claim fails.




                                                       7
     2) This Court erred in permitting the jury to receive in the jury room all expert medical
     reports and internet articles produced by the defense counsel in cross-examination of
     plaintiffs expert.

             The plaintiff's second claim is that this Court erred in permitting the jury to receive in the

     jut)' room all expert medical reports and internet articles produced by the defense counsel in cross-

     examination of the plaintiffs expert. As the trial court is permitted to make trial exhibits available to

     the jury during deliberations, this Court did not err in permitting the jur>' to view expert medical

     reports and internet articles' - rhar were all introduced into evidence at trial - during their

     deliberations. Thus, this claim foils.

             During a jury trial, the court may "make exhibits available to the jut}' during its

     deliberations." Pa.R.C.P. 223.1 (d)(.1). 111e trial court has discretion to determine which exhibits

     should be permitted to be viewed by the jury during deliberations. Wagner by Wagnct; v. Yoxk

     Hospital, 608 A.2d 496, 503 (Pa.Super. l 992).

             During deliberations, the jurors asked to see particular articles which were utilized by

     defense counsel during cross-examination of plaintiffs expert, Dr. Whalen. N.T. 8/12/15 at 53.

 The articles were attached to Dr. Whalen's deposition transcript, Exhibit P-13, and were admitted

 into evidence. Exhibits 0-5, 0-7, 0-8. The jurors also requested to sec the expert reports of Dr.

 Whalen and Dr. Derk, which were also moved into evidence, as attachments                         to   the video deposition

 transcripts of Dr. Whalen and Dr. Derk. Exhibits P-13, D-4.<' Upon consideration of plaintiff's

 counsel's objection, this Court sent only relevant portions of the articles, which were touched on in




; 111c plaintiff incorrectly states that this Court allowed the jury to view all internet articles produced by defense counsel
on cross-examination of plaintiff's expert, Dr. Whalen, as this Court limited the articles to only those pages that were
mentioned in the testimony. N.'l'. 8/12/15 at 68.

1'
 Dr. \X!J1:1len'$ report was attached to Dr. \v'h:1len's video deposition transcript as Exhibit W1rnlcn· I. Dr. Derk's report
was attached to Dr. Derk's video deposition transcript as Exhibit Derk-Z, and his supplemental report was attached as
Exhibit Dcrk-3.


                                                              8
  the experts' testimony, to the      jury. 7 N .T. 8/ 12/ 15 at 68. This Court allowed the expert re pons of

 Dr. Derk and Dr. Whalen to be sent to the jury, as they were also admitted into evidence.                        ML
           As this Court acted within its discretion in allowing the jurors to view portions of the articles

 and the experts' reports - which were all properly admitted into evidence at trial - during

 deliberations, this claim fails.

           For the foregoing reasons, the verdict entered in favor of the defendant should be affirmed.

                                                           BY THE COURT:




                                                          .M. TERESA SA!lliIINA,                          J.




7 Punicuiarly, p,1ges 1, 3, 4, 9, and 10 from the NIH article, entitled "Rheumatoid Arthritis," were sent to the jury. N.T.
8/ 12/ 15 at 74; Exhibit D-S. Pages l , 2, and 7 from the ;\fayo Clinic article, entitled "Diseases and Conditions:
Rheumatoid Arthritis," were scot to the jury. IJ.; Exhibit D-7. Finally, page I from the Cleveland Clinic article, entitled
"Rheumatoid Arthritis," was sent to the jury. IJ.; Exhibit D-8.

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