J-A33035-14

                                   2015 PA Super 21


NIAJAH DEEDS, A MINOR BY HER                :   IN THE SUPERIOR COURT OF
LEGAL GUARDIAN, JULIA RENZULLI              :          PENNSYLVANIA
                                            :
                       Appellant            :
                                            :
                  v.                        :
                                            :
UNIVERSITY OF PENNSYLVANIA                  :
MEDICAL CENTER, HOSPITAL OF THE             :
UNIVERSITY OF PENNSYLVANIA AND              :
TRUSTEES OF THE UNIVERSITY OF               :
PENNSYLVANIA                                :
                                            :
                       Appellees            : No. 755 EDA 2014

                 Appeal from the Order of January 28, 2014,
            in the Court of Common Pleas of Philadelphia County,
                Civil Division at No(s): 2558 May Term, 2011

BEFORE: LAZARUS, WECHT, and STRASSBURGER,* JJ.

CONCURRING AND DISSENTING OPINION BY STRASSBURGER, J.:

FILED JANUARY 30, 2015

      I disagree that Deeds is entitled to a new trial; accordingly, I

respectfully dissent and offer the following analysis.1

      First, I disagree with the Majority that Deeds is entitled to a new trial

on the basis that there were alleged violations of the collateral source rule.

Any prejudice resulting from the introduction of the concept of Medicaid or

the idea that Deeds’ caregivers were not paying for Deeds’ care, would occur

only in the amount of damages awarded to Deeds. Here, the jury found that


1
 I agree with the Majority that Deeds’ third allegation of error regarding Dr.
Perry’s testimony does not warrant a new trial.


* Retired Senior Judge assigned to the Superior Court.
J-A33035-14


the Appellees were not liable for Deeds’ injuries. Thus, they never reached

the issue of damages, so no prejudice resulted.

      I also disagree with the Majority that having two attorneys question

Deeds’ witnesses was reversible error. The Majority concluded that it was

the superfluous counsel for Trustees who “transgressed the collateral source

rule on at least three occasions, transgressions which form the basis for the

award of a new trial in this case.” Majority Opinion, at 14. Having already

concluded that Deeds was not prejudiced by these alleged transgressions, I

also conclude that Deeds is not entitled to a new trial on the basis of trial

court error in permitting counsel for Trustees to participate.

      To the extent that the Majority concluded that Deeds was entitled to a

new trial solely on the basis that the trial court erred in permitting both

counsel to “‘tag team’ Deeds at trial while representing the same interest[,]”

I also disagree. Id. Deeds points to no specific prejudice it suffered, other

than the verdict itself, which could not possibly be considered evidence of

prejudice as Deeds suggests. In the instant case, the trial court determined

that Deeds’ last minute request to exclude counsel for the Trustees was too

late. Pursuant to Pennsylvania Rule of Civil Procedure 223, such a decision

was within the trial court’s discretion, and I see no reason in the record for

such decision to be reversed.




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