J-A09007-15



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

CLARESSA FERGUSON,                           IN THE SUPERIOR COURT OF
                                                   PENNSYLVANIA
                       Appellee

                  v.

NEW JERSEY TRANSIT RAIL
OPERATIONS, INC.,

                       Appellant                 No. 3369 EDA 2013


           Appeal from the Judgment Entered February 6, 2014
           In the Court of Common Pleas of Philadelphia County
             Civil Division at No(s): 100 December Term, 2011


BEFORE: BOWES, DONOHUE, AND STABILE, JJ.

MEMORANDUM BY BOWES, J.:                    FILED SEPTEMBER 16, 2015

     New Jersey Transit Rail Operations, Inc. (“New Jersey Transit”)

appeals from the judgment entered on the jury verdict in favor of Claressa

Ferguson and the trial court’s award of attorney’s fees and costs.    Ms.

Ferguson, an assistant conductor for New Jersey Transit, commenced this

action under the Federal Employers’ Liability Act (“FELA”) to recover

damages for injuries she sustained when the train on which she was working

collided with a vehicle on the tracks.   Her action was consolidated for

purposes of discovery and trial with a similar action brought by Bradford
J-A09007-15



Larkin, the locomotive engineer on the train at the time of the accident. 1

After thorough review, we affirm in part and reverse in part.

       On July 1, 2010, Ms. Ferguson was the assistant conductor on a train

traveling eastbound on the northeast corridor from Trenton, New Jersey, and

approaching the Hamilton, New Jersey station. Upon seeing a vehicle on the

tracks, Engineer Bradford Larkin pulled the emergency brake to stop the

train, a procedure referred to as dumping. Nonetheless, the train struck the

vehicle, which was later revealed to be stolen and abandoned. Ms. Ferguson

sustained injuries to her neck, left shoulder, knees and lower back in the

collision.

       Ms. Ferguson filed this FELA action, alleging, inter alia, that New

Jersey Transit was negligent in failing to secure the tracks in the area of the

collision, an area known to be frequented by trespassers, and in failing to

properly operate the train.        New Jersey Transit moved to consolidate the

instant case with that filed by engineer Bradford Larkin.       In opposition to

consolidation, Ms. Ferguson argued that her interests and those of Mr. Larkin

were not aligned, as she believed that his actions or inactions in the

operation of the train may have contributed to her injuries.       Nonetheless,

the two cases were consolidated.

____________________________________________


1
  New Jersey Transit has filed an appeal in that case at No. 3409 EDA 2013,
which has also been assigned to this panel for disposition.



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      A jury trial commenced on June 10, 2013. During opening statements,

counsel for New Jersey Transit told the jury that, “Mr. Larkin’s own expert

will say the reason he’s not looking for work is because he’s receiving

disability.”   N.T. Trial Vol I., 6/10/13, at 57.    Ms. Ferguson promptly

objected to the reference to disability and the trial court sustained the

objection and ordered the comment stricken. She did not request a curative

instructive or move for a mistrial.

      Mr. Larkin was the first witness for the plaintiffs. At 4:02 p.m., after

considerable direct examination, the court advised the jury that there would

be a short break and the jury was excused. At that time, counsel for Mr.

Larkin objected to defense counsel’s earlier reference to Mr. Larkin receiving

disability benefits and pointed out that this was the subject of a motion in

limine that had not been ruled upon. He argued that counsel’s reference to

this collateral source was so prejudicial as to be incurable and requested a

mistrial. The court declined to grant a mistrial. Instead, it prohibited any

further reference to disability benefits and advised the parties that it would

give very explicit instructions to the jury not to consider “any kind of

collateral source of benefit” at the close of the case.   Id. at 105.   While

acknowledging the reference was improper, the trial court stated that it

intended to cure it.

      Defense counsel’s improper reference was revisited on June 13, 2013,

in light of a report that a male juror was overheard commenting to fellow

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jurors on June 11 that, “he’s on worker’s compensation.”              N.T. Trial,

6/13/13, at 9.    At that time, counsel for Mr. Larkin renewed his earlier

motion for a mistrial based on the assumption that this was a reference to

Mr. Larkin.   The trial court deferred its ruling and permitted Plaintiffs’ two

expert witnesses to testify.     After a hearing on the motion for mistrial,

during which it was confirmed by a witness that a juror was discussing

worker’s compensation during Mr. Larkin’s testimony and that the jurors had

disregarded the trial court’s instruction not to discuss the case until

deliberations, the trial court declared a mistrial. The court held the plaintiffs’

request for costs and fees in abeyance.

      A new trial commenced on July 1, 2013 and concluded on July 15,

2013. The plaintiffs mounted a double-pronged offensive. They maintained

that the railroad was negligent in failing to secure the area of the collision or

warn the engineers of the danger presented by trespassers who frequented

that crossing.    The plaintiffs also alleged that the railroad’s practice of

requiring its engineers to multitask, i.e., refer to special bulletins, timetables

and other paperwork while operating the train, violated Northeast Operating

Rules Advisory Committee (“NORAC”) Rule 958, which required engineers to

keep a constant lookout ahead and to regulate the speed of the train if

distracted. Plaintiffs’ expert, railroad safety consultant Paul Byrnes, testified

that New Jersey Transit was not teaching compliance with or enforcing

NORAC Rule 958.

                                      -4-
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      At the charging conference on July 11, 2013, the court advised of its

intention to instruct the jury in accordance with the standard Modern Federal

Jury Instruction 89-18, which provided that it could find the defendant

negligent if “it instructed its employees to perform tasks or procedures or

methods which it knew in the exercise of reasonable care should have known

would result in injuries.” N.T. Trial, 7/11/13, at 53. That charge led into

plaintiffs’ proposed charge regarding NORAC Rule 958 and the duty of the

railroad to enforce its own operating rules. New Jersey Transit duly noted an

exception to both charges. The court expressly declined to give a binding

instruction on negligence per se, reasoning that the testimony created a jury

issue on NORAC Rule 958. It did, however, advise of its intention to instruct

the jury that if it found that New Jersey Transit violated NORAC Rule 958, it

must determine that the railroad was negligent per se.

      The jury subsequently returned with a verdict in favor of Ms. Ferguson.

As the jury foreperson was reading of the amount of the award, there were

murmurs from the jury. Counsel for Ms. Ferguson, realizing that the amount

of the award was approximately the same as the stipulated damages for

wage loss and did not include damages for pain and suffering, suggested to

the court in the presence of the jury that the jury misunderstood the

instructions.   The jury foreperson verbally confirmed counsel’s suspicions.

Counsel then added that the jury did not award any damages for pain and

suffering.

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      In light of the confusion, the trial court refused to accept Ms.

Ferguson’s verdict; the verdict as to Mr. Larkin was not revealed. Instead,

the trial court re-instructed the jury regarding damages and directed it to

resume its deliberations. New Jersey Transit requested a mistrial based on

counsel’s remarks. The mistrial was denied, and the jury ultimately returned

a $400,000 verdict in favor of Ms. Ferguson and a $679,334 verdict for Mr.

Larkin.

      New Jersey Transit filed a post-trial motion seeking a new trial, which

was denied by the court on November 6, 2013. That same day, the court

granted Ms. Ferguson’s motion for counsel fees and costs incurred as a

result of the earlier June 17, 2013 mistrial, and awarded her $25,961.32.

New Jersey Transit appealed, complied with the trial court’s order to file a

Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal, and

the trial court authored its Rule 1925(a) opinion.       New Jersey Transit

presents three issues for our review:

      1. Whether the trial court erred in refusing to grant a mistrial
         following an inflammatory and prejudicial outburst towards
         the jury by counsel for Ferguson over his dis-satisfaction with
         the verdict that prejudiced the jury.

      2. Whether the trial court erred in charging the jury that New
         Jersey Transit Rail Operations, Inc. was negligent per se for
         failing to train/enforce NORAC Operation Rule 958 under the
         Code of Federal Regulations because such claim is precluded
         by the Federal Railroad Safety Act.

      3. Whether the trial court erred in awarding costs and attorney’s
         fees to Ferguson after declaring a mistrial.

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Appellant’s brief at 4.

      New Jersey Transit first alleges that the trial court erred in refusing a

new trial due to Ms. Ferguson’s counsel’s verbal remarks during the reading

of the jury’s damage award.        As we recently reiterated in Flenke v.

Huntington, 111 A.3d 1197, 1199-1200 (Pa.Super. 2015), “Trial courts

have broad discretion to grant or deny a new trial” and “we review the trial

court's decision for abuse of discretion.”    It is well-established law that,

absent a clear abuse of discretion by the trial court, appellate courts must

not interfere with the trial court's authority to grant or deny a new trial.

Harman ex rel. Harman v. Borah, 756 A.2d 1116, 1121 (Pa. 2000). This

Court “will not reverse a trial court’s decision regarding the grant or refusal

of a new trial absent an abuse of discretion or an error of law.” Am. Future

Sys. v. Better Bus. Bureau, 872 A.2d 1202, 1210 (Pa.Super. 2005).

      In responding to a request for a new trial, the trial court is charged

first with deciding whether there was a mistake at trial, and if so, whether

that mistake warrants a new trial.       Since the harmless error doctrine

underlies every decision to grant or deny a new trial, the moving party must

demonstrate that he or she has suffered prejudice from the mistake.

Flenke, supra at 1199.

      The following occurred. On Friday, July 12, 2013, the jury advised the

court that it had reached a verdict in the case. The court crier read aloud



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the interrogatories on the verdict form for Ms. Ferguson and the jury

foreperson answered in the affirmative that New Jersey Transit failed to

enforce NORAC Rule 958; that its failure to enforce the rule was the cause,

in whole or in part, of the injuries sustained by Ms. Ferguson; that New

Jersey Transit was negligent; that its negligence was the cause of Ms.

Ferguson’s injuries; and that Ms. Ferguson sustained damages in the amount

of $53,000.      N.T., 7/12/13, at 95-6.         As the foreperson read aloud the

amount of the verdict, however, there was a murmur from the jury,

prompting the trial court to ask the foreperson to read the number again.

The foreperson said “53 – 56,000.”2 Id. at 96. Noting the discrepancy, the

trial court asked to see the verdict slip.             At that point, counsel for Ms.

Ferguson said, “Your Honor, I’m not sure that the jury quite understood.”

Id. at 97.      The jury foreperson interjected, “We didn’t.”           Id.   Counsel

continued, “They just gave what the stipulated amount was. They did not

go into any pain and suffering issue.”           Id.    The court quelled any further

discussion, advised the jury that if there was confusion, “I’m going to send

you back to the jury deliberation room,” and the court suspended the taking

of the verdict. Id.


____________________________________________


2
  The parties stipulated that Ms. Ferguson’s wage loss totaled $53,000, and
the jury was advised of the stipulation. There was no stipulation as to Mr.
Larkin.



                                           -8-
J-A09007-15



      After the jury exited the courtroom, counsel for Mr. Larkin posited that

the jury may have believed that the stipulation as to Ms. Ferguson’s wage

loss damages was a stipulation of the totality of her damages. He noted that

there was no such stipulation regarding Mr. Larkin.      New Jersey Transit

requested a mistrial. Counsel for the railroad argued that there had been

direct dialogue between plaintiff’s counsel and the jury concerning the

damage award.      Pain and suffering was mentioned and “[c]onfusion, I

guess, at that point broke out, and I believe that’s grounds for a mistrial.”

N.T. Trial, 7/12/13, at 98.

      Shortly thereafter, the court received a note from the jury foreperson.

The jury asked the court to explain, “How do we determine Ms. Ferguson’s

pain and suffering,” and added that they had “assumed her claim is for

stipulation only.” N.T., 7/12/13, at 100. The court decided to recharge the

jury on damages and summoned them to the courtroom for that purpose.

The jury returned, the court re-read its damages instruction, and the jury

resumed its deliberations. At 4:30 p.m., approximately one hour later, the

court released the jurors and instructed them to return Monday to continue

deliberating.

      On Monday, July 15, 2013, as the jury deliberated, argument resumed

on New Jersey Transit’s motion for mistrial.     At its conclusion, the court

made the following findings. There was confusion displayed by members of

the jury when the Ferguson verdict was read. Counsel’s comments, “though

                                    -9-
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out loud and inappropriate,” were made to the bench and not to any juror.

N.T. Trial, 7/15/13, at 9.          The court explained that it suspended the

proceedings in order to cure any potential prejudice.             The court found

confusion with respect to the Ferguson verdict slip but none demonstrated

as to Larkin.      The court denied the mistrial and advised counsel that it

would direct the jury to finalize the verdict slip with respect to Ms. Ferguson,

but that it would receive the verdict slip that was completed Friday afternoon

with regard to Mr. Larkin.           The trial court then redirected the jury to

continue its deliberations as to Ms. Ferguson only. Forty minutes later, the

jury returned with verdicts. The Larkin verdict was dated and signed on July

13, 2013,3 and awarded Mr. Larkin $679,334 in damages.               The Ferguson

verdict slip dated July 15, 2013, awarded her $400,000. The jury was polled

regarding the Ferguson verdict and all twelve jurors agreed it represented

their verdict.

       Since the trial court articulated a single mistake, our “review is narrow

and limited in scope to the stated reason or reasons, and we must review

that reason under the appropriate standard.”              Flenke, supra at 1200

(quoting Harman, supra at 1122-23).                In determining whether the trial

court abused its discretion in denying a mistrial based on counsel’s
____________________________________________


3
  The verdict slip was actually dated July 13, 2013, which was Saturday.
The court concluded that the date was in error and that it should have read
July 12, 2013.



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comment, we examine the remark made, the circumstances under which it

was made, and the precautions taken by the court to remove its prejudicial

effects. Hill v. Reynolds, 557 A.2d 759, 765-66 (Pa.Super. 1989) (citation

and quotation marks omitted).

      We held in Poust v. Hylton, 940 A.2d 380, 385 (Pa.Super. 2007),

that “a new trial is to be granted where the unavoidable effect of the

conduct or language was to prejudice the fact-finder to the extent that the

fact-finder was rendered incapable of fairly weighing the evidence and

entering an objective verdict." In that case, counsel’s reference to cocaine

in closing argument in clear violation of the court’s earlier order, “could not

be obliterated from the minds of the jurors.” Id. at 387. We held that grant

of a mistrial was required therein “to promote fundamental fairness, to

ensure professional respect for the rulings of the trial court, to guarantee the

orderly administration of justice, and to preserve the sanctity of the rule of

law.” Id.

      The record confirms that counsel for Ms. Ferguson’s remarks were

directed to the trial court. The record also supports the trial court’s finding

that the jury displayed confusion, the foreperson acknowledged the same,

and all of this occurred before counsel’s mention of “pain and suffering.”

The subsequent question from the jury confirmed the court’s belief that it

did not understand the role of the wage loss stipulation in fashioning Ms.

Ferguson’s damages award. The trial court found that counsel’s comments

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were not prejudicial to New Jersey Transit and that the jury arrived at its

award “after reasoned and rational deliberations, and was not motivated or

prejudiced by counsel’s interruption.” Trial Court Opinion, 6/17/14, at 37.

     On the record before us, we find no basis to disturb the trial court’s

conclusion that counsel’s comments did not render the jury incapable of

fairly weighing the evidence and entering an objective verdict. Thus, we find

no error in the court’s refusal to grant a mistrial, and no new trial is

warranted on that basis.

     Next, New Jersey Transit offers several bases in support of its

contention that the trial court erred in charging the jury that the railroad

was negligent per se for failing to train employees in or enforce NORAC Rule

958 under the Code of Federal Regulations (“CFR”).       First, it relies upon

Lombardy v. Norfolk Southern Ry., 2014 U.S. Dist. LEXIS 75244 (N.D.

Ind. 2014), in support of its position that such a claim is preempted by the

Federal Railroad Safety Act (“FRSA”).        In Lombardy, partial summary

judgment was granted on a claim for negligent training, education, and

instruction where evidence was uncontroverted that the railroad had

complied with the FRSA regulations for training and education.      The court

found that compliance with the FRSA precluded FELA relief on this basis.

     Ms. Ferguson counters that New Jersey Transit waived any contention

that the FRSA pre-empted this FELA claim, and points out that the record is

devoid of any mention or reference to that statute.       Furthermore, New

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Jersey Transit did not object to Mr. Byrnes testimony regarding the Code of

Federal Regulations and the NORAC rules.

       Preliminarily, we note that New Jersey Transit’s statement of issue

implies that the trial court issued a binding instruction for plaintiffs on

negligence per se.         The record reveals, however, that the trial court

instructed the jury that if it found that New Jersey Transit failed to train its

engineers in NORAC Rule 958, it must find New Jersey Transit negligent per

se. N.T. Trial, 7/12/13, at 56 (emphasis added). Thus, the issue of whether

New Jersey Transit failed to train its engineers was placed squarely before

the factfinder.

       Second, as Ms. Ferguson correctly observes, New Jersey Transit did

not advance the preemption argument in the trial court.               The Federal

Railroad Safety Act was mentioned for the first time on appeal. 4 Since New

Jersey Transit failed to articulate at trial the legal issue it raises herein, it is

waived for purposes of appeal.           Dilliplaine v. Lehigh Valley Trust Co.,

322 A.2d 114, 116-17 (Pa. 1974) (“Appellate court consideration of issues



____________________________________________


4
  Furthermore, New Jersey Transit did not assign as error in a post-trial
motion, or in its Pa.R.A.P. 1925(b) concise statement of issues complained
of on appeal, that claims of inadequate training are precluded by federal
regulations promulgated pursuant to the Federal Railroad Safety Act, 49
U.S.C. §§20101 et seq.




                                          - 13 -
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not raised in the trial court results in the trial becoming merely a dress

rehearsal.”).

      In somewhat of a non-sequitur, New Jersey Transit suggests that if

this Court rejects its preemption argument, then the trial court abused its

discretion in refusing to permit road foreman, Al Zahn, to testify that New

Jersey Transit enforced NORAC Rule 958 and to interpret the black box data

from the accident. Appellant’s brief at 33. In reviewing this claim, we are

mindful that, “The admissibility of evidence is a matter addressed to the

discretion of the trial court and may be reversed on appeal only upon a

showing that the court abused its discretion.” Buchhalter v. Buchhalter,

959 A.2d 1260, 1262 (Pa.Super. 2008). In addition, for a ruling on evidence

to constitute reversible error, it must have been harmful or prejudicial to the

complaining party.” Simmons, supra at 584-85.

      New Jersey Transit called Al Zahn, its chief road foreman, to testify.

In response to plaintiffs’ request for an offer of proof, the railroad proffered

as follows.     Mr. Zahn would testify “about the duties of an engineer while

operating the train” and the Major Incident Event Recorder, the so-called

“black box” data regarding this incident.        N.T. Trial, 7/10/13, at 18.

Additionally, he would discuss the information contained on the data

recorder, namely speeds and braking, for the last thirty seconds prior to the

stopping of the train.    He would also testify regarding the enforcement of




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NORAC rules generally, and in particular, as to Mr. Larkin during the relevant

time frame.

       Contrary to New Jersey Transit’s representation, the court permitted

Mr. Zahn to testify that he reviewed data from the black box to “monitor

engineers for compliance [with] all kinds of NORAC rules,” from 2005 until

2011. Id. at 11. Mr. Zahn testified that New Jersey Transit enforces NORAC

rules and trains its engineers to comply with those rules and that he

personally observed train operations to ensure that the rules were followed

and would reprimand engineers who took their eyes off the track to read

bulletins or timetables. Mr. Zahn took issue with Mr. Byrnes’ conclusion that

looking   down and        reading    bulletins     constituted   multitasking or   that

multitasking required an engineer to take his eyes off the track ahead.

Although Mr. Zahn did not specifically reference NORAC Rule 958, the trial

court did not preclude him from doing so.5             The facts do not support this

assignment of error.

       Next, the railroad alleges that the court committed reversible error in

precluding Mr. Zahn from interpreting data from the black box and providing

a second-by-second account of the speed of the train for the thirty-two
____________________________________________


5
  Mr. Zahn was not permitted to testify that he reprimanded Mr. Larkin on
two prior occasions for distractions while driving the train. The court found
such evidence to be unfairly prejudicial in light of New Jersey Transit’s
position that Mr. Larkin was in compliance with all operating rules on the day
in question.



                                          - 15 -
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seconds prior to the collision based on the absence of an expert report. The

trial court precluded Mr. Zahn from testifying about the meaning of the

event recorder readings in the five seconds leading up to Mr. Larkin’s

application of the brake since that would be “tantamount to expert

testimony” and Mr. Zahn was not identified as expert and had not provided a

report. Trial Court Opinion, 6/17/14, at 30; see Pa.R.C.P. 4003.5.

       The railroad contends that the lack of an expert report should not have

been fatal since plaintiffs could not claim unfair surprise or lack of notice.

The railroad maintains that plaintiffs had the data and provided Mr. Byrnes

with a copy of the download for his review. Appellee’s brief at 34.

       We find no merit in the railroad’s position. Absent an expert report,

the plaintiffs were not apprised of the scope of Mr. Zahn’s proffered

testimony and the need for their own expert. While Mr. Byrnes was provided

with a copy of the download, there is nothing in the record to suggest that

his expertise extended to black box data interpretation.     Additionally, the

plaintiffs also objected at trial that the proffered testimony was irrelevant

and cumulative. Although the trial court did not exclude it on that basis, our

review of the record and briefs reveals that the railroad has yet to explain

the significance of the proffered data interpretation to its case.6 Thus, we

____________________________________________


6
   New Jersey Transit’s sole response to objections that the testimony was
irrelevant and cumulative was that, since plaintiffs had advised the jury
(Footnote Continued Next Page)


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find no basis for concluding that its exclusion constituted reversible error

that warrants a new trial.

      New Jersey Transit’s final challenge is to the trial court’s award of

$25,961.32 in costs and attorney’s fees to Ms. Ferguson.        The law is well

settled that “[t]he trial court has great latitude and discretion with respect to

an award of attorney's fees pursuant to a statute.”        Scalia v. Erie Ins.

Exchange, 878 A.2d 114, 116-117 (Pa.Super. 2005) (citing Cummins v.

Atlas R.R. Construction Co., 814 A.2d 742, 746 (Pa.Super. 2002)). Our

review of a trial court's order awarding attorney's fees to a litigant is limited

solely to determining whether the trial court palpably abused its discretion in

making a fee award.          Lucchino v. Commonwealth, 809 A.2d 264 (Pa.

2002); Miller v. Nelson, 768 A.2d 858 (Pa.Super. 2001).            If the record

supports a trial court's finding of fact that a litigant violated the conduct

provisions of the relevant statute providing for the award of attorney's fees,

such award should not be disturbed on appeal. Thunberg v. Strause, 682

A.2d 295, 299-300 (Pa. 1996).

      We examine in detail the events at the first trial that culminated in the

mistrial and the subsequent award of counsel fees and costs. On June 10,

2013, the trial court met with counsel to resolve some of the motions in
                       _______________________
(Footnote Continued)

several times that, based on the download, “Mr. Zahn has come to the
conclusion that Mr. Larkin did nothing wrong[,]” Mr. Zahn should be able to
talk about it. N.T. Trial, 7/10/13, at 27.



                                           - 17 -
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limine that would likely be implicated in counsel’s opening statements in the

case.    Defense counsel took the lead in identifying those motions that

required immediate rulings. He did not mention a motion in limine filed by

Mr. Larkin seeking to preclude the defense from referencing the fact that Mr.

Larkin was on disability or a similar motion by Ms. Ferguson to preclude

reference to her prior claims.

        Nonetheless, during New Jersey Transit’s opening statement, counsel

told the jury that although Mr. Larkin’s counsel provided a “big number” for

his client’s wage loss, “Mr. Larkin’s own expert will say the reason he’s not

looking for work is because he’s receiving disability.”     N.T. Trial Vol I.,

6/10/13, at 57.       Counsel for Ms. Ferguson promptly objected to the

reference to disability and the trial court sustained the objection and ordered

the comment stricken.      No request for curative instructive or motion for

mistrial was made at that time.

        A moment later, in reference to Ms. Ferguson, defense counsel told the

jury that she complained of pain in the same shoulder in several prior claims

against the railroad.    He added, “In fact her own doctor will look at her

report and say, I wasn’t aware of the fact that her doctor from the last claim

permanently disabled her because of that shoulder.”          Id. at 59.    Ms.

Ferguson’s counsel objected and the trial court cautioned defense counsel

“We’re going to move on, counsel.” Id.




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      Mr. Larkin was the first witness called to testify by the plaintiffs. At

4:02 p.m., after considerable direct examination, the court advised the jury

that there would be a short break and the jury was excused. Ms. Ferguson’s

counsel placed on the record an objection to defense counsel’s reference to

prior claims and asked the court to rule on the motion in limine. Counsel for

Mr. Larkin registered an objection to defense counsel’s earlier reference to

Mr. Larkin receiving disability benefits and pointed out that this was the

subject of an unresolved motion in limine.      Counsel for Mr. Larkin argued

that defense counsel’s reference to this collateral source was so prejudicial

as to be incurable and requested a mistrial.

      The trial court admonished defense counsel for failing to highlight the

motion in limine regarding disability benefits “as one that needed to be

resolved prior to openings.”     Id. at 106.   The court stated that it would

review the motion in limine and “[f]or now, we’re not going to have any

reference to claims as it relates to the injury.” Id. at 108.

      Defense counsel, in an attempt to justify his reference to Mr. Larkin’s

receipt of disability benefits, advised the court that he “clearly would never

raise that unless I thought they had opened the door.” Id. He maintained

that Mr. Larkin’s expert opened the door when he opined at his deposition

that it made no financial sense for Mr. Larkin to find work since he was

receiving disability payments.    The trial court rejected counsel’s excuse,

noting that the door could not have been opened because no evidence had

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been presented to the jury, and added that it might preclude the jury from

hearing such testimony.     However, the court declined to grant a mistrial.

Instead, it prohibited any further reference to disability benefits and advised

the parties that it would give very explicit instructions to the jury not to

consider “any kind of collateral source of benefit” at the close of the case.

Id. at 109.     The reference was improper but the trial court stated that it

intended to cure it.

      Trial continued on June 11, 2013, was in recess on June 12, 2013, and

when it resumed on June 13, 2013, the court entertained additional

argument on the remaining motions in limine.            At the conclusion of

argument, counsel for Mr. Larkin introduced the fact that a juror was

overheard by Attorney Robert Goggin making comments about worker’s

compensation on June 11, 2012, and that Mr. Goggin reported the situation

to the court.    Counsel for Mr. Larkin advised the court that he believed

Defense counsel’s comment regarding Mr. Larkin’s receipt of disability

benefits and the juror’s reference to worker’s compensation were “tied

together,” and renewed his motion for mistrial. N.T., 6/13/13, at 39. The

court announced that it would entertain the motion for mistrial, but prior to

suspending trial, Plaintiffs’ expert witnesses Dr. Carl Berkowitz and Mr. Paul

Byrnes were permitted to present live testimony.

      Both plaintiffs filed motions for mistrial and hearing on the motions

was held on June 17, 2013.      Attorney Goggin reported the following.    Mr.

                                     - 20 -
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Larkin was on the stand. The court and counsel were at sidebar discussing

an objection.   Mr. Goggin, located five to six feet from the jury box, was

leafing through a trial binder to find an exhibit.     From that location, he

“distinctly heard one of the jurors say he’s on worker’s comp, assuming

talking about Mr. Larkin.”    N.T. Mistrial Motion, 6/17/13, at 9.     He was

unable to pinpoint the juror, but identified a male voice. Mr. Goggin added

that, after he sat down, he observed about half of the jurors turned toward

each other engaged in conversation and comparing notes. Anthony DiGiulio,

an associate of counsel for Ms. Ferguson, testified that he did not hear the

substance of any conversation but he did hear talking, particularly during Mr.

Larkin’s direct testimony. Juror No. 6, a male, was talking to Jurors Nos. 5

and 7, “showing notes and pretty animated in his conversation.” Id. at 11.

      Following argument of counsel, the trial court concluded that it would

constitute reversible error to proceed with the trial under the circumstances,

and it granted the motion for mistrial. It stated on the record that “mere

mention” of collateral sources is “a fatal blow to the trial.” Id. at 28. That,

coupled with the fact that the juror’s discussion was a violation of the court’s

prohibition against sharing thought processes prior to deliberation, led to the

court’s conclusion that “to go further with this case would amount to

reversible error.”   Id. at 29.   The trial court held under advisement the

matter of plaintiffs’ costs and attorney’s fees. It later awarded counsel fees

pursuant to 42 Pa.C.S. § 2503(7), which permits such an award if a

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participant’s conduct during the pendency of the matter is “dilatory,

obdurate or vexatious,”7 and its own inherent power to control the

proceedings.

        New Jersey Transit contends first that the trial court did not make the

requisite finding that counsel for the railroad’s conduct was “obdurate,

vexatious or acting in bad faith” to support an award of attorney’s fees

under § 2503(7).        It maintains that the court merely stated that counsel

“erred” in referencing Mr. Larkin’s receipt of disability benefits.

        The court first noted that “[i]t is well-settled law that collateral source

benefits should not be introduced absent a plaintiff offering information on

such a subject . . .” Trial Court Opinion, 6/17/14, at 14. Despite that fact,

and although a motion in limine had been filed to preclude reference to

collateral source benefits, defense counsel “forged ahead.” Id. at 15. The

court found that counsel’s “comments were the direct cause of an eventual

mistrial.” Id. at 16. Thus, the court concluded that counsel “interfered with

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7
    That statute provides in pertinent part:

        The following participants shall be entitled to a reasonable
        counsel fee as part of the taxable costs of the matter:

        (7) Any participant who is awarded counsel fees as a sanction
        against another participant for dilatory, obdurate or vexatious
        conduct during the pendency of a matter.

42 Pa.C.S. § 2503(7).



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the ordinary business of this Court when he gratuitously mentioned the

collateral source benefits of Plaintiff-Larkin in opening statements.” Id.

      We agree with New Jersey Transit that an award of counsel fees

pursuant to 42 Pa.C.S. § 2503(7) must be supported by a trial court’s

specific finding that the conduct is vexatious, obdurate, or dilatory.

Township of South Strabane v. Piecknick, 686 A.2d 1297, 1299 (Pa.

1996); Kulp v. Hrivnak, 765 A.2d 796 (Pa.Super. 2000). Dilatory conduct

occurs "where the record demonstrates that counsel displayed a lack of

diligence that delayed proceedings unnecessarily and caused additional legal

work."   In re Estate of Burger, 852 A.2d 385, 391 (Pa.Super. 2004).

Arguably, causing a mistrial and the delay associated with a new trial may

be considered dilatory.

      The trial court also predicated its award on “its inherent power to

conduct its business . . . in an orderly manner, taking such action against

an Attorney, who after all is an officer of the court, as may be reasonably

necessary[.]”    Trial Court Opinion, 6/17/14, at 11 (citing Coburn v.

Domanosky, 390 A.2d 1335, 1338 (Pa.Super. 1978)).             In Coburn, we

vacated a compulsory nonsuit entered against a party, reasoning that if

unnecessary expenses were incurred due to counsel’s scheduling conflict,

perhaps costs should be assessed against counsel instead.

      We are troubled by the sequence of events leading up to the

declaration of the mistrial.   We observe that a mistrial would likely have

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been avoided if the trial court had ruled on all of the motions in limine prior

to trial. That said, defense counsel’s reference in opening statement to Mr.

Larkin’s receipt of disability benefits was improper and arguably so

prejudicial as to warrant a mistrial at that time. However, no one moved for

a mistrial at that time.8 Ms. Ferguson objected but apparently acquiesced in

the court’s decision to sustain her objection and strike the comment. She

did not request a curative instruction; Mr. Larkin did not even object. Given

the plaintiffs’ apparent lack of concern over defense counsel’s improper

comment, one can hardly fault the trial court for believing that it could cure

any prejudice.

       Trial continued.     Additional attorney’s fees were incurred, as well as

the substantial expenses attendant to two expert witnesses.         Neither the

trial court nor the plaintiffs point to any further objectionable conduct on the

part of defense counsel.        However, upon substantiating that a male juror

referenced worker’s compensation, the trial court declared a mistrial. Later,

counsel fees and costs were assessed against defense counsel based on the

____________________________________________


8
   The railroad contends that Ms. Ferguson did not have standing to object
and move for a mistrial as the reference pertained only to Mr. Larkin
although it cites no authority in support of that position. Actually, neither
plaintiff sought a mistrial immediately after defense counsel’s objectionable
comments. It was only later, well into Mr. Larkin’s direct testimony, that Mr.
Larkin objected and sought a mistrial. The court denied the motion due to
its belief that it could cure any prejudice with a proper jury instruction. N.T.
Trial, 6/10/13, at 110.



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court’s apparent finding that the juror’s reference to worker’s compensation

was triggered by counsel’s reference to disability benefits in his opening

statement.

      We cannot discern from the record whether the male juror’s remark

about worker’s compensation was made in reference to Mr. Larkin or

whether it was prompted by defense counsel’s objectionable reference to

disability benefits. The trial court held a hearing but did not question any of

the jurors. Additionally, we note that the trial court expressed frustration at

the jurors’ disregard of its instruction not to discuss the case or share notes,

and this conduct seemed to factor heavily into the court’s decision to grant

the mistrial.   Thus, we find no basis for the court’s conclusion that Ms.

Ferguson “incurred costs associated with litigating a case that had to be cut

short due solely to error attributable to Appellant’s counsel[.]” Trial Court

Opinion, 6/17/14, at 15.     Counsel’s conduct was not dilatory within the

meaning of § 2503(7), nor did it interfere with the trial court’s inherent

power to conduct its business in an orderly manner.       For that reason, we

vacate the order awarding attorney’s fees and costs.

      In light of the foregoing, we affirm the liability and damage award in

favor of Ms. Ferguson and vacate the award of attorney’s fees and costs.

      Judgment affirmed in part and reversed in part.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/16/2015




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