J-S24017-16



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

WILLIAM B.C. VITEZ AND DAWN A.                IN THE SUPERIOR COURT OF
VITEZ,                                              PENNSYLVANIA

                        Appellants

                   v.

MARMAXX OPERATING CORP., AND THE
T.J.X. COMPANIES, INC.,

                        Appellee                   No. 1617 MDA 2015


          Appeal from the Judgment Entered September 15, 2015
             In the Court of Common Pleas of Lebanon County
                    Civil Division at No(s): 2010-00506


BEFORE: GANTMAN, P.J., BOWES, AND MUSMANNO, JJ.

MEMORANDUM BY BOWES, J.:                           FILED APRIL 14, 2016

     William B.C. and Dawn A. Vitez appeal from the judgment entered

against them after a jury found in favor of Appellees, Marmaxx Operating

Corporation and The T.J.X. Companies, Inc., in this personal injury action

based on negligence. We affirm.

     Appellants instituted this action by writ of summons on March 8, 2010,

seeking damages for injuries that they allegedly sustained on March 9, 2008,

at the T.J. Maxx store located in Lebanon, Pennsylvania, which is owned and

operated by Appellees. Appellants averred that at approximately 3:00 p.m.

on the day in question, automatic doors at the entrance to that store

prematurely closed on Mr. Vitez, injuring his right hand, arm, and shoulder.
J-S24017-16



Appellants maintained that the accident caused injuries to Mr. Vitez that

affected his ability to earn a living as a violinist.

      The matter proceeded to a jury trial. Mr. and Mrs. Vitez testified as

follows. There were two sets of doors to the entrance to the store. They

manually opened the first set.         The second set was automatic, opened

toward the entrance rather than toward the inside of the store, and abruptly

closed on Mr. Vitez as he was walking through them. The door struck his

right hand, arm, and shoulder, and caused him to spill coffee that he was

holding.    Mr. Vitez reported the accident to the store manager, Thomas

Struebel.   Appellants represented that Mr. Struebel told them that there

were “problems with that door before. He was going to put a sign on the

door to be careful and it’s not working properly.” N.T. Trial, 8/11/15, at 16.

Appellants said that Mr. Struebel apologized for the accident.

      Mr. Struebel, the store manager for the T.J. Maxx store from April

2004 through February 2009, provided contrary evidence than that proffered

by Appellants. During his videotaped deposition taken for purposes of trial,

Mr. Struebel explained that the door in question was not fully automatic. It

was “a push-assist door, you actually have to push on the handle and once it

feels your pressure on it, it would automatically open for you.” Deposition of

Thomas Struebel, 8/4/15, at 7.         That witness stated, “I don't remember

having any problems with” either set of doors at the entrance to the

Lebanon T.J. Maxx. Id. at 8.

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     Mr. Struebel acknowledged meeting with Mr. Vitez on March 9, 2008,

and said that Mr. Vitez told him that “he was coming into the door and hit

his hand on the [inside entrance] door.” Id. at 8. Mr. Vitez completed an

incident report and photographed the door, which had coffee on it. Mr.

Struebel noticed that Mr. Vitez’s hand was red but could not ascertain if it

was from the spilled coffee or from being struck.

     Thereafter, Mr. Struebel went back “to clean the door off and checked

it to see if it was operating properly.” Id. at 9. Mr. Struebel reported that

the door “operated fine” in that it “was opening and closing regularly.” Id.

Mr. Struebel was asked and answered the following questions:

     Q. Mr. Struebel, with respect to the inner entranceway door that
     we were talking about, during the course of the day in question
     on March 8, 2008, were you aware of that door malfunctioning
     or not acting properly at any point before Mr. Vitez reported his
     incident to you?

     A. No.

     Q. Do you have any recollection of that door malfunctioning or
     not acting properly the day before this incident occurred?

     A. No.

     Q. Do you have any recollection as you're sitting here today of
     that door not acting properly or malfunctioning a week before
     this incident occurred?

     A. No.

     Q. Do you have any recollection or any knowledge of that door
     not operating properly a month before this incident in March
     2008?



                                    -3-
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      A. No.

Id. at 10-11. Finally, Mr. Struebel said that there was no instance of the

door failing to properly function between January and March 2008. He also

stated that he did not call for maintenance on the door on March 9, 2008

because it had not malfunctioned previously and was operating properly

after Mr. Vitez left.   Mr. Struebel also testified that he was ninety-nine

percent sure that the doors in question did not open toward the entrance

but, instead, opened toward the inside of the store and that Appellants were

incorrect in reporting that the automatic doors opened toward rather than

away from them.

      After the incident, Mr. Vitez went to the emergency room at a local

hospital, where he complained about pain in his right hand radiating into his

fingers and arms. His right hand was x-rayed and displayed no fracture. He

was diagnosed with a bruise to the right hand.      At that time, he did not

complain of pain in the right shoulder. Mr. Vitez began to experience pain in

the right shoulder, and he presented medical testimony indicating that he

had a pre-existing torn rotator cuff in the right shoulder that was aggravated

by the accident.

      The jury heard evidence that in June 2007, nine months before this

incident, Mr. Vitez slipped, fell, and landed on the same hand that was

purportedly struck by the door at the T.J. Maxx store. In October 2007, five

months before the alleged accident herein, Mr. Vitez suffered injuries to his

                                    -4-
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right shoulder when a door at Hershey Hospital closed on him. Mr. Vitez was

in a motor vehicle accident in 2000, instituted a lawsuit, and claimed therein

that the accident had affected his ability to play the violin.

      The jury concluded that Appellees were not negligent, and this appeal

followed denial of Appellants’ post-trial motions. They purport to raise ten

issues on appeal:

      1. Did the trial court err in denying Plaintiffs' Motion for Post-
      Trial Relief and failing to award judgment notwithstanding the
      verdict in favor of Plaintiffs or award a new trial in that the
      Defendant's store manager, Thomas Struebel, admitted to both
      Plaintiffs at the time of the incident that he had been having
      problems with the door that struck Mr. Vitez and that he had
      intended to put up a warning sign but had not yet done so. Mr.
      Struebel did not deny making the admission to the Plaintiffs in
      his testimony at trial and the admission constitutes a failure on
      the part of the Defendant to comply with its duty under the law
      and as a result Defendant was negligent as a matter of law?

      2. Did the trial court err in refusing to award sanctions against
      Defendant, including a finding of liability as a matter of law, for
      spoliation of evidence, namely replacing the doors in question
      while the litigation was pending without notice to Plaintiff’s
      counsel, after Plaintiff's counsel had asked to set up an
      inspection time, and before Plaintiffs and Plaintiffs' expert had an
      opportunity to inspect them, and the Defendant failing to
      produce in discovery photographs taken of the doors in question
      and Plaintiff's injuries by the store manager on the date of the
      incident?

      3. Did the trial court err in denying Plaintiffs' request for
      standard points for charge 5.60 and 5.70 with respect to the
      Defendant's spoliation of evidence in replacing the doors in
      question while the litigation was pending and before Plaintiffs
      and Plaintiffs' expert had an opportunity to inspect them, and
      the Defendant failing to produce in discovery photographs taken
      of the doors in question and Plaintiff's injuries by the store
      manager on the date of the incident?

                                      -5-
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      4. Did the trial court err in denying Plaintiffs' request for
      standard point for charge 13.30 which is the res ipsa loquitur
      charge?

      5. Did the trial court err in granting Defendant's Motion in Limine
      and limiting the testimony of Plaintiffs' expert witness, Len
      McCuen, in his testimony at trial?

      6. Did the trial court err in prohibiting the testimony at trial of
      Plaintiffs' engineering and architecture expert, Len McCuen,
      regarding the failure of Defendant to comply with manufacturing,
      safety, and industry standards with respect to the inspection and
      maintenance of the doors in question?

      7. Did the trial court err in refusing to allow the Plaintiff and
      Plaintiffs' expert to present evidence regarding the full service
      record history with respect to the entrance and exit doors in
      question especially in light of Defendant's admission that it had
      no regular inspection or maintenance of the doors. (Plaintiffs'
      exhibit 3)?

      8. Did the trial court err in limiting the Plaintiffs' cross
      examination of Thomas Struebel, the store manager, with
      respect to other service calls regarding the doors in question in
      the front of the store prior to the date of Plaintiffs incident and
      failing to allow cross-examination with respect to Mr. Struebel's
      involvement in adjusting the timing on the doors in question
      immediately subsequent to the incident in question?

      9. Did the trial court err in sustaining Defendant's counsel's
      objection to Plaintiffs' counsel's closing argument regarding the
      replacement of the doors by Defendant which had been testified
      to during the trial without objection?

      10. Did the trial court err in permitting the Defendant to have a
      second defense medical expert examination of the Plaintiff?

Appellants’ brief at 2-4. Issues five and six are identical and will be resolved

together.




                                     -6-
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      Appellants’ first claim is that the trial court should have entered

judgment in their favor due to alleged admissions made by Mr. Struebel.

            When reviewing the propriety of an order granting or
      denying judgment notwithstanding the verdict, we must
      determine whether there is sufficient competent evidence to
      sustain the verdict. We must view the evidence in the light most
      favorable to the verdict winner and give the verdict winner the
      benefit of every reasonable inference arising therefrom while
      rejecting all unfavorable testimony and inferences. We apply
      this standard in all cases challenging the grant of a motion for
      J.N.O.V.

             Pennsylvania law makes clear that a judgment
      notwithstanding the verdict is proper only in clear cases where
      the facts are such that no two reasonable minds could disagree
      that the verdict was improper. Questions of credibility and
      conflicts in evidence are for the fact-finder to resolve. This Court
      will not substitute its judgment based upon a cold record for that
      of the fact-finder where issues of credibility and weight are
      concerned.

Dubose v. Quinlan, 125 A.3d 1231, 1237-38 (Pa.Super. 2015) (citations

omitted).

      Appellees’ liability herein was premised upon the duty imposed under

Restatement (Second) of Torts § 341A, which is the duty owed by a

possessor of land to a business invitee.        As we recently observed, in

Carrender v. Fitterer, 469 A.2d 123 (Pa. 1983), our Supreme Court

outlined that:

              Possessors of land owe a duty to protect invitees from
      foreseeable harm. Restatement (Second) of Torts, §§ 341A, 343
      & 343A. With respect to conditions on the land which are known
      to or discoverable by the possessor, the possessor is subject to
      liability only if he,



                                     -7-
J-S24017-16



            “(a) knows or by the exercise of reasonable care
            would discover the condition, and should realize that
            it involves an unreasonable risk of harm to such
            invitee, and

            (b) should expect that they will not discover or
            realize the danger, or will fail to protect themselves
            against it, and

            (c) fails to exercise reasonable care to protect them
            against the danger.”

      Restatement, supra, § 343.

Reinoso v. Heritage Warminster SPE LLC, 108 A.3d 80, 85 (Pa.Super.

2015) (en banc).

      Appellants assert that judgment should have been entered in their

favor because Mr. Struebel admitted to them that he knew about the

condition of Appellees’ property, that the inside entrance automatic doors

were shutting prematurely and striking customers.       In seeking judgment

n.o.v., Appellants first rely upon their own testimony as to a purported

admission from Mr. Struebel. Appellants’ brief at 12 (“William Vitez testified

at trial that the store manager, Thomas Struebel, admitted that there had

been problems with the door prior to the incident in question, but he had not

had a chance to put up a warning sign. Dawn Vitez, likewise, testified to the

same admission by Mr. Struebel.”).

      Appellants’ reliance upon their own testimony is misguided. Pursuant

to the standard of review in the judgment n.o.v. context, we view the

evidence in the light most favorable to the verdict winner, and we do not

                                     -8-
J-S24017-16



overturn the credibility determinations of the factfinder. By its verdict, the

jury found this testimony by Mr. and Mrs. Vitez incredible, and we likewise

must discount it. Additionally, Appellees adduced proof that the doors were

functioning properly before and after 3:00 p.m. on March 9, 2009, which we

must credit.

     Appellants suggest that “Mr. Struebel at no time either in his discovery

deposition or in the trial testimony, denied making the statements in

question.”     Id.   This suggestion is a mischaracterization of Mr. Struebel’s

testimony, which was that there had been no problems with the door from

January 2008 to March 2008.            He also said that he did not ask a

maintenance company to look at the door after March 9, 2008, because he

operated the door after Mr. Vitez said that it closed on him. The door was

working properly, as it had in the past.      Appellants read excerpts from a

deposition that Mr. Struebel gave prior to his videotaped deposition. In the

previous deposition, Mr. Struebel stated that he did not remember making

any of the statements attributed to him by Appellants.

     Since Mr. Struebel testified that the door did not malfunction before

the incident in question, he would not have apologized to Appellants, would

not have said that there was trouble with the door prior to March 9, 2008,

and would not have said that he meant to place warning signs at the

entrance. Mr. Struebel’s testimony unquestionably constituted a denial that

he admitted to Appellants that the door was not functioning properly just

                                       -9-
J-S24017-16



prior to March 9, 2008.        We therefore reject Appellants’ request for

judgment n.o.v.

      Appellants’ second and third contentions relate to the doctrine of

spoliation.    They fault the trial court with refusing to sanction Appellees

under that doctrine since the doors that purportedly malfunctioned were

replaced.     Appellants, in their second issue, contend that an appropriate

sanction in this case was entry of judgment as to liability in their favor. In

their third allegation raised on appeal, they suggest that, in the alternative,

the jury should have been given the spoliation charge.

      As we observed in Creazzo v. Medtronic, Inc., 903 A.2d 24, 28

(Pa.Super. 2006) (quoting Mount Olivet Tabernacle Church v. Edwin L.

Wiegand Division, 781 A.2d 1263, 1269 (Pa.Super. 2001)), “When

reviewing a court's decision to grant or deny a spoliation sanction, we must

determine whether the court abused its discretion.”      Both the decision to

sanction a party for destroying evidence as well as the type of sanction

imposed is within the trial court’s discretion. Creazzo, supra.

      Spoliation sanctions are imposed due to the “the common sense

observation that a party who has notice that evidence is relevant to litigation

and who proceeds to destroy evidence is more likely to have been

threatened by that evidence than is a party in the same position who does

not destroy the evidence.” Id. at 29 (quoting Mount Olivet, 781 A.2d at

1269). One remedy for the destruction of evidence within a party’s control

                                     - 10 -
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is to instruct the jury that an adverse inference may be drawn against the

party. Creazzo, supra. At the other end of the spectrum, the trial court

may impose liability against that party. Id.

      When determining whether to sanction a party for spoliation as well as

the nature of the sanction to impose, the trial court must consider three

factors:

      (1) the degree of fault of the party who altered or destroyed the
      evidence; (2) the degree of prejudice suffered by the opposing
      party; and (3) whether there is a lesser sanction that will avoid
      substantial unfairness to the opposing party and, where the
      offending party is seriously at fault, will serve to deter such
      conduct by others in the future.

Creazzo, supra at 29 (quoting Mount Olivet, 781 A.2d at 1269–70). The

“evaluation of the first prong, ‘the fault of the party who altered or

destroyed the evidence,’ requires consideration of two components, the

extent of the offending party's duty or responsibility to preserve the relevant

evidence, and the presence or absence of bad faith.” Creazzo, supra at 29

The duty of the offending party to preserve the evidence is established when

that party knows that litigation is pending or likely and that it is foreseeable

that destruction of the evidence would prejudice the other party. Id.

      Herein, the evidence as to spoliation was as follows.     In July, 2011,

three years and four months after the accident, the T.J. Maxx store in

question was renovated.      As part of those renovations, the doors that

allegedly closed on Mr. Vitez were replaced.       Appellants’ lawyer, Karl R.



                                     - 11 -
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Hildebrand, Esquire, filed an affidavit indicating that he verbally discussed

examining the accident scene with Appellees’ counsel in June, 2011, fifteen

months after this case was filed. Appellants did not formally ask to examine

the doors until December 16, 2011, twenty-one months after this action was

instituted,   and   five   months   after   the   renovation   work,   when   they

disseminated a letter demanding an inspection.

      We conclude that the trial court did not abuse its discretion in refusing

to sanction Appellees under the facts at bar. It found both that Appellees

bore no fault in the removal of the door and that Appellants suffered no

prejudice due to their inability to inspect it. We concur with both findings.

      Appellees did not intentionally destroy the automatic doors to prevent

Appellants from inspecting them; rather, they were replaced as part of a

renovation project that occurred more than three years after the March 9,

2008 incident and sixteen months after this lawsuit was filed.          Appellants

waited fifteen months after filing this case to informally discuss an inspection

with Appellees’ counsel, who would have no apparent reason to know about

corporate plans to renovate the store. Appellants did not set a date for the

inspection, which could have occurred in the month between the alleged

June 2011 conversation and the July 2011 renovation.

      Appellants’ written request to inspect the doors was made five months

after the renovations, and twenty-one months after the action was

instituted. Under the circumstances, Appellees had no reason to believe that

                                      - 12 -
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Appellants sincerely wanted to examine the doors when they decided to

renovate their store.

      Fifteen months after this action was instituted, they determined that

the need to examine the property was so imperative that liability based on

spoliation should be imposed on Appellees. Conveniently, that demand was

sent after the doors were removed. If the necessity for an examination of

the accident scene was so compelling, Appellants should have made their

request in a timely manner. Since twenty-one months had passed from the

filing of this litigation before Appellants sent a written request to examine

the doors, Appellees bore no fault for purposes of spoliation when they

decided to go forward with renovations.

      Additionally, Appellants were not prejudiced by their inability to inspect

the doors in December 2011, which was more than three and one-half years

after the accident occurred.   The spoliation involved in this case does not

pertain to the destruction of a static object that malfunctioned, such as a

car. Rather, the product was in continual use after March 9, 2008. As of

December 16, 2011, when the inspection demand was made, the automatic

doors would not have been in the same condition as they were in when Mr.

Vitez was supposedly injured by them. Inspection is a non-issue in this case

because it would have been of no value.

      Specifically, this action was not a products liability case against the

manufacturer or distributor of a purportedly defective product.      In such a

                                    - 13 -
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case, a plaintiff normally must have access to the product to prove that it

was defective. In the present matter, the issues at trial were whether the

door had closed prematurely on customers before the March 9, 2008

incident and whether Appellees had notice that it had done so.               An

inspection conducted in December 2011 would not have established either of

those critical issues.   Appellants have advanced concepts pertinent to

malfunctioning products and attempted to engraft them in this premises

liability case.

      As the trial court noted, Appellants had the maintenance records for

the door in question so that they could establish the existence of any

malfunction and notice thereof prior to March 9, 2008. They also presented

expert testimony as to Appellees’ duty to inspect and maintain the door, as

was pertinent to whether Appellees should have known the door was faulty.

Hence, we conclude that the trial court did not abuse its discretion in

refusing to sanction Appellees to any extent under the doctrine of spoliation,

and we therefore reject Appellants’ second and third claims.

      Appellants’ fourth complaint is that the trial court erred in refusing to

instruct on the doctrine of res ipsa loquitur. Our standard of review in this

context is as follows:

             Our standard of review when considering the adequacy of
      jury instructions in a civil case is to “determine whether the trial
      court committed a clear abuse of discretion or error of law
      controlling the outcome of the case.” Stewart v. Motts, 539 Pa.
      596, 654 A.2d 535 (1995). It is only when “the charge as a

                                     - 14 -
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      whole is inadequate or not clear or has a tendency to mislead or
      confuse rather than clarify a material issue” that error in a
      charge will be found to be a sufficient basis for the award of a
      new trial. Id. at 540; Ferrer v. Trustees of University of
      Pennsylvania, 573 Pa. 310, 345, 825 A.2d 591, 612 (2002);
      see also Tindall v. Friedman, 970 A.2d 1159, 1175 (Pa.Super.
      2009).

Pringle v. Rapaport, 2009 PA Super 171, ¶ 12, 980 A.2d 159, 165

(Pa.Super. 2009) (en banc).        We outline the parameters of the res ipsa

loquitur doctrine:

            Res ipsa loquitur allows juries to infer negligence from the
      circumstances surrounding the injury.          Res ipsa loquitur,
      meaning literally “the thing speaks for itself,” is “a shorthand
      expression for circumstantial proof of negligence – a rule of
      evidence.” Gilbert v. Korvette, Inc., 457 Pa. 602, 327 A.2d 94,
      99 (1974). It is a rule that provides that a plaintiff may satisfy
      his burden of producing evidence of a defendant's negligence by
      proving that he has been injured by a casualty of a sort that
      normally would not have occurred in the absence of the
      defendant's negligence. William L. Prosser, Law of Torts §§ 39,
      40 (4th ed. 1971) (calling res ipsa loquitur a “simple matter of
      circumstantial evidence”). As noted, the Restatement (Second)
      of Torts § 328D formulates the evidentiary theory of res ipsa
      loquitur as follows:

            (1) It may be inferred that harm suffered by
            the plaintiff is caused by negligence of the
            defendant when

                     (a) the event is of a kind which ordinarily
                     does not occur in the absence of
                     negligence;

                     (b) other responsible causes, including
                     the conduct of the plaintiff and third
                     persons, are sufficiently eliminated by
                     the evidence; and




                                       - 15 -
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                   (c) the indicated negligence is within the
                   scope of the defendant's duty to the
                   plaintiff.

              (2) It is the function of the court to determine
              whether the inference may reasonably be drawn by
              the jury, or whether it must necessarily be drawn.

              (3) It is the function of the jury to determine
              whether the inference is to be drawn in any case
              where different conclusions may reasonably be
              reached.

Quinby v. Plumsteadville Family Practice, Inc., 907 A.2d 1061, 1071

(Pa. 2006).

     The trial court refused to instruct the jury on this doctrine since, in

order to establish liability, Appellants had to prove that Appellees had

knowledge or should have had knowledge of a defect prior to the incident,

which they failed to do.    Moreover, as the event in question could have

occurred in the absence of negligence on the part of Appellees, the charge

was inapplicable herein. We concur with this analysis.

     We observe the following. Whether the door actually struck Mr. Vitez

was not an uncontested fact in this case.          Appellants were the only

eyewitnesses to this event. Mr. Struebel merely saw spilled coffee on the

door. Of significance is the fact that Mr. Struebel also said that the doors

were functioning properly both before and after they purportedly closed on

Mr. Vitez. Since the happening of the incident at issue was not conceded,

the charge in question was inappropriate for that additional reason.



                                     - 16 -
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       Appellants’ fifth and sixth allegations concern certain restrictions that

the trial court placed on the ability of their expert witness, Len McCuen, to

testify at trial.

             The admission of evidence, including expert scientific
       testimony, is within the purview of the trial court's discretion. . .
       . [T]he decision to admit or to exclude evidence, including expert
       testimony, lies within the sound discretion of the trial court.
       Generally, we review a trial court's evidentiary rulings for abuse
       of discretion. An abuse of discretion is not merely an error of
       judgment; if, in reaching a conclusion, the court overrides or
       misapplies the law, or the judgment exercised is shown by the
       record to be either manifestly unreasonable or the product of
       partiality, prejudice, bias or ill will, discretion has been abused.

A.J.B. v. M.P.B., 945 A.2d 744, 749 (Pa.Super. 2008) (citations omitted).

       Initially, we note the following. The trial court did permit Mr. McCuen

to opine that the manufacturer's specifications for the door in question

recommended that Appellees perform regular maintenance on the door and

that Appellees’ service records established that they were not performing

that maintenance. N.T. Trial, 8/10/15, at 121-22. He was also allowed to

state that certain safety features built into the door were not functioning

properly when the incident occurred.           His testimony was that automatic

doors do not normally hit a person passing through them

       because there's a fail-safe system. Whether it's a power assist,
       fully automatic, sliding, swinging, it doesn't matter. All these
       doors have a backup sensor system and they have a safety zone
       for a swinging door that would be the area of that you get
       swatted by a door. There's many different kinds of sensors. We
       don't know what kind of sensor it had but looking at literature
       and so forth it was likely infrared scanner above the door and
       based on the behavior, it had to have failed. Regardless of

                                      - 17 -
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      whether or not it was power or they were linked or not linked,
      regardless of quite a number of things of why the door was even
      open kind of doesn't matter because we know that failed. But
      then also the backup safety zone sensor had to have
      failed or otherwise it wouldn't have closed in on him the
      way it did.

Id. at 121 (emphases added).

      However, Mr. McCuen was directed not to discuss problems that

Appellees encountered with doors in the store that did not strike Mr. Vitez.

This ruling was proper since the only door relevant to this matter was the

one that hit Mr. Vitez.     Evidence that “is not relevant is not admissible.”

Pa.R.E. 402. “Evidence is relevant if: (a) it has any tendency to make a fact

more or less probable than it would be without the evidence; and (b) the

fact is of consequence in determining the action.” Pa.R.E. 401. The issue at

trial was whether the door that allegedly struck Mr. Vitez was malfunctioning

before March 9, 2008.       Hence, issues concerning any other doors at the

store were not pertinent at trial, and the trial court did not abuse its

discretion in its ruling in this respect.

      In addition, Mr. McCuen was not allowed to reveal to the jury that

there was a problem with the door just prior to the March 8, 2009 incident

and that Appellees should have known about the problem. This ruling was

premised upon the fact that the service records for the door refuted that

opinion.    Specifically, Appellees’ records established two service calls

pertaining to the door at issue prior to March 9, 2008.        One, made on



                                       - 18 -
J-S24017-16



December 5, 2005, involved the door closing prematurely and striking

people’s heels and behinds.      The other one pertained to a malfunctioning

button, which did not involve a problem similar to the one herein.

      Since the December 5, 2005 service call occurred two years and three

months prior to the present incident, the trial court concluded that Mr.

McCuen would be required to speculate that there had been problems with

the door in question closing too quickly just prior to Mr. Vitez’s experience.

The law provides that

      expert testimony is incompetent if it lacks an adequate basis in
      fact. While an expert's opinion need not be based on absolute
      certainty, an opinion based on mere possibilities is not
      competent evidence. This means that expert testimony cannot
      be based solely upon conjecture or surmise. Rather, an expert's
      assumptions must be based upon such facts as the jury would
      be warranted in finding from the evidence.

Gillingham v. Consol Energy, Inc., 51 A.3d 841, 849 (Pa.Super. 2012).

      In this case, the service records, as well as Mr. Struebel’s testimony,

indicated that there had not been problems with the door shutting

prematurely in the months preceding March 9, 2008.         Appellants had no

proof upon which Mr. McCuen could base an opinion to the contrary. Hence,

any testimony to the effect that the door was closing prematurely just prior

to the incident and that Appellees should have known about it would have

been pure speculation.       The trial court properly restricted Mr. McCuen’s

testimony in this respect.




                                     - 19 -
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      Appellants’ eighth issue is that the trial court erred in limiting their

cross-examination of Mr. Struebel and not permitting them to question him

about “the full service history on all the entrance and exit doors.”

Appellant’s brief at 26. As outlined, supra, the service calls on doors that did

not strike Mr. Vitez were not relevant. Hence, the questioning was properly

disallowed.

      Next, Appellants complain that the trial court incorrectly curtailed their

closing argument that would have suggested to the jury that the doors were

replaced because they were defective.         Specifically, in closing remarks,

Appellants’ counsel noted that “the doors were replaced. I would submit to

you, ladies and gentlemen, it’s reasonable to infer that you don't replace

doors in front of a store –.” N.T. Trial, 8/12/15, at 14. Appellees’ objection

to continuation of this line of thought was sustained.      Counsel’s remarks

were clearly going to ask the jury to make the inference that the doors were

replaced because they were defective or malfunctioning.         The trial court

sustained the objection because the doors were not replaced on that basis

but for cosmetic reasons during a renovation that occurred years after the

March 9, 2008 incident.

      Appellants maintain on appeal that Appellees acknowledged that the

doors were removed and that they were permitted to argue all inferences

from the evidence.     The flaw in this position is that the inference that

Appellants sought to make was an improper one under Pa.R.E. 407, which

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provides, “When measures are taken by a party that would have made an

earlier injury or harm less likely to occur, evidence of the subsequent

measures is not admissible against that party to prove: negligence; culpable

conduct; a defect in a product or its design; or a need for a warning or

instruction.” Appellants’ argument on appeal fails for an additional reason.

The inference that Appellants were asking the jury to make was factually

erroneous.   The doors were removed as part of renovations, not because

they were malfunctioning.

      Appellants’ final position is that the trial court “erred in permitting the

Defendant to have a second defense medical expert examination of the

Plaintiff.” Appellants’ brief at 28. Pa.R.C.P. 4010(a) states,

      (2) When the mental or physical condition of a party, or of a
      person in the custody or under the legal control of a party, is in
      controversy, the court in which the action is pending may order
      the party to submit to a physical or mental examination by an
      examiner or to produce for examination the person in the party's
      custody or legal control.

      (3) The order may be made only on motion for good cause
      shown and upon notice to the person to be examined and to all
      parties and shall specify the time, place, manner, conditions and
      scope of the examination and the person or persons by whom it
      is to be made.

      The determination of whether there was good cause for a medical

examination is committed to the discretion of the trial court. McGratton v.

Burke, 674 A.2d 1095, 1096 (Pa.Super. 1996). When this action was first

instituted, Appellees were given an expert report linking injuries to Mr.



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Vitez’s arm and hand to the March 9, 2008 incident, and Appellees obtained

a medical examination of those areas.        Appellants then gave Appellees a

second expert report, which stated for the first time that Mr. Vitez’s rotator

cuff injury was exacerbated when the door closed on him. The trial court

therefore permitted Appellees to obtain a medical examination of that area.

In light of these facts, there was no abuse of discretion in permitting the

second examination.    Moreover, this contention relates to the question of

damages, which the jury never examined since it found that Appellees were

not negligent.    Hence, any error in this respect was not harmful to

Appellants.

      Judgment affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/14/2016




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