J-A22008-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 CAROLE WILSON                            :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 UNIVERSITY OF PENNSYLVANIA               :
 MEDICAL CENTER, HOSPITAL OF              :
 THE UNIVERSITY OF PENNSYLVANIA,          :   No. 703 EDA 2016
 TRUSTEES OF THE UNIVERSITY OF            :
 PENNSYLVANIA, FRANCIS                    :
 MARCHLINSKI, M.D., AND THE               :
 CLINICAL PRACTICES OF THE                :
 UNIVERSITY OF PENNSYLVANIA               :
                                          :
                    Appellants            :

                  Appeal from the Order January 21, 2016
    In the Court of Common Pleas of Philadelphia County Civil Division at
                 No(s): December Term, 2012 No. 000488


BEFORE:    BOWES, J., LAZARUS, J., and PLATT*, J.

DISSENTING MEMORANDUM BY BOWES, J.:                    FILED JULY 10, 2018

      I agree with my distinguished colleagues in every respect but one: that

the record supports the trial court’s finding that defense counsel’s misconduct

was prejudicial, i.e., that “the fact finder [was] rendered incapable of fairly

weighing the evidence and entering an objective verdict.” Poust v. Hylton,

940 A.2d 380 (Pa.Super. 2007).        Hence, I respectfully dissent from the

majority’s affirmance of the grant of a new trial.

      As trial began, Mrs. Wilson stipulated that there was no negligence in

the performance of the ablation procedure and requested that the court limit

the scope of the trial to the post-procedure administration of heparin. The
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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trial court agreed, and so ruled. Nevertheless, in examining Defendant Dr.

Marchlinski, counsel for Defendants focused on the successful performance of

the ablation procedure itself, drawing objections from counsel for Mrs. Wilson,

which the court sustained. Defense counsel returned to the subject of the

ablation procedure repeatedly, pushing the limits of the trial court’s ruling.

Objections were sustained and curative instructions given.          On several

occasions, the trial court accused counsel of intentionally trying to confuse the

jury, and admonished him. To ensure that counsel’s conduct did not divert

the jury’s attention from the issues in the case, the court sua sponte instructed

the jury numerous times that the ablation procedure itself was not the issue

and refocused the jury’s attention on the administration of heparin post-

ablation.

      The record also confirms that defense counsel’s interrogation was

unnecessarily repetitive and cumulative at times.          However, the court

sustained objections and limited the inquiry. When defense counsel asked

leading questions, objections were sustained without the injection of otherwise

inadmissible testimony. Throughout, the trial court vigilantly circumscribed

the scope and manner of the questioning, and re-directed the jury’s attention

to the pertinent issues.

      Despite defense counsel’s persistent defiance of the court’s rulings

regarding the scope of relevant testimony, Mrs. Wilson did not seek a mistrial.

Rather, Defendants moved for a mistrial, maintaining that the trial court’s


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frequent rebukes had suggested to the jury that defense counsel’s questions

and conduct were inappropriate.       Furthermore, defense counsel suggested

that the tone of the court’s comments to him communicated that the court

favored the Plaintiff over the Defendants. The trial court not only denied the

mistrial, but also later expressed its belief that defense counsel’s conduct was

calculated to provoke Mrs. Wilson into moving for a mistrial. The trial court

stated that it would not have granted a mistrial regardless of which party

asked for it, suggesting to me that the trial court did not believe at the time

that defense counsel’s conduct was so prejudicial as to preclude a fair trial.

         After thorough review, I am struggling to find a record basis to support

the trial court’s change of mind. The trial court does not point to any particular

circumstance or indication that defense counsel’s misconduct affected the

verdict. I note that the jury returned a defense verdict after less than one

hour of deliberations.     We have steadfastly maintained, however, that the

duration of deliberations is no indicator that that any party was denied a fair

trial.   See Commonwealth v. Ferguson, 107 A.3d 206, 212 (Pa.Super.

2015) (holding defendant was not entitled to new trial for robbery and assault

after jury returned guilty verdict on forty-three separate counts after

deliberating for approximately one hour and six minutes); DiFeliceantonio

v. Armstrong World Industries, Inc., 680 A.2d 893, 895 (Pa.Super. 1996)

(finding no indication that jury abandoned its duty to render a verdict based

on the evidence due to “fatigue or slothfulness” where jury returned its verdict


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within one hour of being sent out to deliberate at 4:50 p.m. on a Friday).

Furthermore, the brevity of the deliberations would tend to belie jury

confusion.

         There was a post-verdict email from the jury foreperson to Mrs. Wilson’s

counsel that was proffered in support of the grant of a new trial. The email

was reviewed by the trial court to determine whether it fell within the

exception to the no-impeachment rule.         Since the email did not relate to

outside influences in the jury room, but solely described the nature of the

deliberations, the trial court properly concluded that the email could not be

considered.      Thereafter, in ruling on the motion for new trial, the court

expressly stated that it disregarded the email and its contents. Consequently,

I see nothing in the record that explains why defense counsel’s disregard for

the trial court’s rulings at trial, which the trial court stated did not warrant the

grant of a mistrial then, was later deemed so prejudicial as to mandate a new

trial.

         Finally, I agree with Defendants that the trial court’s curative

instructions were more than sufficient to cure any perceived prejudice flowing

from defense counsel’s misdeeds.        Defendants direct our attention to two

cases where they contend counsel’s misconduct was far more egregious, but

held not to be so prejudicial as to require a new trial. In Maya v. Benefit

Risk Management, 97 A.3d 1203 (Pa.Super. 2014), we affirmed the trial

court’s denial of a new trial, even though counsel for plaintiff referred to the


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defendant corporation’s wealth and “army of attorneys[,]” which the defense

maintained “purposely inflamed the passions of the jury to the point where

they were unable to render a fair and just verdict.”       Id. at 1224.    After

presiding over the nine-week trial, the trial court found that counsel for

plaintiff’s misconduct did not prevent the jury from “sifting through the

evidence objectively and returning a verdict that was supported by the

evidence.” Id. On appeal, this Court observed that the jury’s verdict in favor

of the defendant on three claims, including one for punitive damages, tended

to indicate that the verdict “was not the product of passion or prejudice.” Id.

      In Ferguson v. Morton, 84 A.3d 715 (Pa.Super. 2013), this Court

found the trial court abused its discretion in ordering a new trial where, during

closing argument, plaintiff’s attorney urged the jury multiple times to punish

the defendant.    The court sustained objections each time, reprimanded

counsel, and advised the jury to disregard the improper argument. On the

fifth infraction, the court terminated the plaintiff’s closing argument and again

issued a curative instruction. The defense moved for mistrial, which the trial

court denied. The jury thereafter returned a compensatory damage award of

$575,000, and allocated negligence equally among the parties. The defense

moved for a new trial, alleging that counsel’s remarks were prejudicial and

affected the verdict. The trial court agreed, and granted a new trial.

      On appeal, Judge, now Justice, Wecht, reasoned that the record did not

support a finding of prejudice as the objections were sustained, counsel was


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reprimanded “with increasing pointedness,” and curative instructions were

given. This Court relied heavily on the fact that, in addition to the steps the

trial court took at the time to convey to the jury the inappropriate nature of

the argument, the court “accurately and in detail” instructed the jury why it

had to disregard counsel’s entreaty to punish the defendant.           Citing the

presumption that juries obey the court’s instructions, we reversed the trial

court’s grant of a new trial.

      Defendants also point to Young v. Washington Hosp., 761 A.2d 559

(Pa.Super. 2000), a medical negligence action arising from the defendants’

failure to perform a caesarean section that caused a serious birth injury.

Defense counsel asserted in his opening statement that the plaintiff parents’

refusal to permit corrective surgery constituted contributory negligence, and

furthermore, that they made the decision only after consultation with counsel.

The trial court did not give a curative instruction at the time, and later refused

to grant parents a new trial on that basis. On appeal, this Court found that

the implication that the parents sued for financial gain, rather than for the

benefit of their child, was not factually supported and so prejudicial as to

require a new trial.

      Herein, in granting Mrs. Wilson’s motion for a new trial, the trial court

characterized defense counsel’s misconduct as so consequential that, “like a

dash of ink in a can of milk, it cannot be strained out[.]” Trial Court Opinion,

10/31/16, at 31 (quoting Lobalzo v. Varoli, 185 A.2d 557, 561 (Pa. 1962)


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(ordering a new trial as it was impossible to measure impact of erroneously

admitted evidence of plaintiff’s receipt of workers’ and unemployment

compensation and misleading jury charge on the verdict)). However, neither

the trial court nor Mrs. Wilson pointed to any particular remark or argument

of defense counsel that was so inflammatory or improper that it was

prejudicial and necessitated a new trial.       See e.g. Poust, supra (holding

appellee’s mention of the word cocaine, in violation of the court’s ruling,

tainted the entire proceeding and compromised appellant’s ability to get a fair

trial).

          I submit there is nothing in the record that suggests that defense

counsel’s questionable tactics affected the verdict.         The trial court took

numerous precautions to ensure that no prejudice occurred. The nature of

the misconduct was not egregious or so inflammatory as to suggest a verdict

on an improper basis. In my view, defense counsel’s transgressions herein

did not rise to the level of impropriety exhibited in Maya, Ferguson, Poust

or Young.        Furthermore, as in Ferguson, the trial court issued explicit

curative instructions calculated to alleviate any potential prejudice. There is

simply no indication that the instructions failed to accomplish their purpose.

          Thus, I believe it was an abuse of discretion to grant a new trial on the

record before us. I would reverse the grant of a new trial, and affirm judgment

in favor of Defendants.




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