J-S31011-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 MARGARET A. NYSTROM                      :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                    Appellant             :
                                          :
                                          :
              v.                          :
                                          :
                                          :
 COUNTRY FAIR, INC.                       :   No. 1374 WDA 2018

           Appeal from the Judgment Entered August 22, 2018
  In the Court of Common Pleas of Warren County Civil Division at No(s):
                            No. 239 of 2016


BEFORE: OLSON, J., STABILE, J., and McLAUGHLIN, J.

MEMORANDUM BY OLSON, J.:                          FILED OCTOBER 29, 2019

      Appellant, Margaret A. Nystrom, appeals pro se from the judgment

entered in favor of Country Fair, Inc. (“Country Fair”) on August 22, 2018,

following a jury trial. We affirm.

      The trial court accurately summarized the factual background of this

case as follows:

      On July 26, 2015, [] Appellant entered the ladies' room at the
      Country Fair located at 413 Penn Avenue in Warren, Pennsylvania.
      While washing her hands, the bathroom mirror collapsed off the
      wall and struck Appellant in the head. Subsequently, Appellant
      [sued Country Fair] for negligence. Appellant claimed [that
      Country Fair] failed to properly inspect the ladies room, and failed
      to implement a policy ensuring the mirrors were adequately
      secured to the wall. Therefore, Appellant claimed [that] this
      failure to meet their duty of safety was an act of negligence [that]
      caused Appellant's injuries. [Country Fair] claimed it had no prior
      knowledge of the defective mirror, and was therefore not
      negligent.

      Following trial, the [j]ury found [Country Fair] negligent, but not
      the factual [cause of] Appellant's injuries. Therefore, Appellant
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       [could not recover]. Appellant filed a [m]otion [for] [post-t]rial
       [r]elief, requesting a judgment notwithstanding the verdict
       (JNOV), as well as [a motion for a new trial on] damages.
       Following argument on the [m]otion[s], the [trial c]ourt denied
       said [m]otion[s] and [entered the] [j]ury's verdict. [This timely
       appeal followed.]1

Trial Court Opinion, 10/17/18, at *1-2 (un-paginated) (footnote added).

       On appeal, Appellant raises the following issues:

          I.     Whether the jury was improperly instructed [which resulted]
                 in confusion during [] deliberations and [entering the]
                 verdict form?

       II.       [Whether the jury’s verdict was against the weight of the
                 evidence?] 2


Appellant’s Brief at 6.

       First, Appellant asserts – without specification - that the “jury was not

properly instructed and was confused with respect to the verdict form.” Id.

at 21.3        Appellant’s counsel, however, did not object to the proposed jury
____________________________________________


1 Appellant filed a notice of appeal on September 21, 2018. On September
25, 2018, the trial court filed an order directing Appellant to file a concise
statement of matters complained of on appeal pursuant to Pa.R.A.P.
1925(b)(1). Appellant filed her Rule 1925(b) statement on October 16, 2018.
The trial court issued an opinion pursuant to Pa.R.A.P. 1925(a) on October 17,
2018.

2 We have rephrased Appellant’s issue because, upon review, we conclude that
it is Appellant’s contention that the jury’s verdict finding Country Fair
negligent, but not the factual cause of Appellant’s injuries, was against the
weight of the evidence. See Appellant’s Brief at 40.

3 Appellant makes a general argument, but fails to specify which jury
instruction she considers improper. Under Pa.R.A.P 2119, the failure to
develop an argument on appeal results in waiver. Thus, we note that



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instructions at the charging conference, which was held on the record. N.T.

Trial, 7/12/18, at 365-366. Furthermore, after charging the jurors, the trial

court asked if counsel had “any objection to [place] on the record to [the trial

court’s] final charge.”       N.T. Trial, 7/13/18, at 490.   Appellant’s counsel

responded in the negative. Id. As such, Appellant waived her challenge to

the trial court’s instructions because of her counsel’s failure to raise an

objection thereto. See Jones v. Ott, 191 A.3d 782, 792 (Pa. 2018); Pa.R.A.P

(302)(b) (requiring specific objection to portion of charge challenged on

appeal).

       Next, Appellant contends that the jury’s verdict was against the weight

of the evidence. Appellant’s Brief at 40. Specifically, Appellant claims that

her expert, Dr. Michael McCue, established that Country Fair’s negligence was

the factual cause of her injuries and, therefore, the jury’s finding to the

contrary should be set aside. Id. at 43. We disagree.

       In reviewing Appellants' claim, the following principles govern our

analysis.

       A new trial based on weight of the evidence issues will not be
       granted unless the verdict is so contrary to the evidence as to
       shock one's sense of justice; a mere conflict in testimony will not
       suffice as grounds for a new trial. Upon review, the test is not
       whether this Court would have reached the same result on the
       evidence presented, but, rather, after due consideration of the
       evidence found credible by the jury, and viewing the evidence in
       the light most favorable to the verdict winner, whether the court
       could reasonably have reached its conclusion. Our standard of
____________________________________________


Appellant’s first claim is subject to waiver since, arguably, she failed to
adequately develop this issue on appeal.

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       review in denying a motion for a new trial is to decide whether the
       trial court committed an error of law which controlled the outcome
       of the case or committed an abuse of discretion.

       We stress that if there is any support in the record for the trial
       court's decision to deny the appellant's motion for a new trial
       based on weight of the evidence, then we must affirm. An
       appellant is not entitled to a new trial where the evidence
       presented was conflicting and the fact-finder could have decided
       in favor of either party.

Winschel v. Jain, 925 A.2d 782, 788 (Pa. Super. 2007) (internal citations

omitted).

       At trial, Appellant’s expert testified via recorded deposition.            Per

Appellant, Dr. McCue provided “overwhelming evidence” of her injuries and

demonstrated that her injuries were the “direct result” of Country Fair’s

negligence. Appellant’s Brief at 43. Upon review, however, we conclude that

the evidence presented by Dr. McCue was “significantly contradict[ed]” by

Country Fair’s expert, Dr. James Petrick. Trial Court Opinion, 10/17/18, at *2

(un-paginated).

       Appellant argued that the incident at Country Fair caused multiple

injuries, including a “traumatic brain injury, post-concussion syndrome,

speech difficulties, memory, hearing, and vision loss, along with spinal and

muscle injuries.” Trial Court Opinion, 10/17/18, at *2-3 (un-paginated). In

support, Appellant relied upon Dr. McCue’s expert opinion. Dr. McCue testified

that   the   incident   at   Country   Fair   caused   Appellant   to   suffer   from

post-concussive disorder. Id. at *3 (un-paginated). Dr. McCue based his

diagnosis solely upon Appellant’s “self-reported symptoms” at her evaluation.



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Id.   Additionally, Dr. McCue opined that the incident exacerbated Appellant’s

pre-existing somatic symptom disorder. Id. This disorder, per Dr. McCue,

results in the physical “presentation of emotional symptoms” without a “clear

medical explanation for where [the injuries] come from.” N.T. Deposition of

Michael McCue, 6/27/18, at 21.       He based this diagnosis on Appellant’s

self-reported symptoms, as well as a review of her medical records. Id. at

22.

      In contrast, Dr. James Petrick, Country Fair’s medical expert, disagreed

with Dr. McCue’s diagnosis of Appellant. Indeed, Dr. Petrick opined that the

incident at Country Fair did not cause Appellant to suffer from post-concussive

disorder. Trial Court Opinion, 10/17/18, at *3 (un-paginated). He based his

conclusion on the fact that Appellant’s “reported symptoms were inconsistent

with her diagnosis” and the “lack of objective testing to support [Dr. McCue’s]

conclusion.” Id. Dr. Petrick, instead, claimed that Appellant “suffered from

false beliefs and delusions.” Id. He also offered other reasons for Appellant’s

symptoms, citing her several pre-existing conditions that included “migraines,

syncopal episodes, obstructive sleep apnea, chest pain, hypertension, foot

injury, abdominal pain, carpel tunnel syndrome, and GERD.”           Id. at *5

(un-paginated). All of which, per Dr. Petrick, are “similar to the symptoms

Appellant claims are the direct result of the mirror injury.” Id. Finally, while

Dr. Petrick did agree with Dr. McCue’s diagnosis that Appellant suffered from

somatic symptom disorder, he asserted that it was impossible to conclude to




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a reasonable degree of medical certainty that the incident exacerbated

Appellant’s condition. Id.

      Thus, the two experts in this case provided conflicting testimony

regarding the cause of Appellant’s injuries.     Accordingly, the jury, as the

fact-finder, was “free to accept the testimony of one expert and reject the

testimony of the other.” Kraner v. Kraner, 841 A.2d 141, 145 (Pa. Super.

2004), quoting Neison v. Hines, 653 A.2d 634, 637 (Pa. 1995).          Viewing

the evidence in favor of Country Fair, the verdict winner, we conclude that the

jury could reasonably have reached its conclusion and, as such, we discern no

abuse of discretion on the part of the trial court. Id.

      Judgment affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/29/2019




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