J-A11018-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    PHILIP D. EDWARDS, M.D.                    :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    QUANTUM IMAGING & THERAPEUTIC              :   No. 1732 MDA 2017
    ASSOCIATES, INC.                           :

              Appeal from the Judgment Entered November 2, 2017
      In the Court of Common Pleas of Cumberland County Civil Division at
                                No(s): 13-6932


BEFORE:      STABILE, J., NICHOLS, J., and PLATT, J.*

MEMORANDUM BY NICHOLS, J.:                                FILED JULY 18, 2018

        Appellant Philip D. Edwards, M.D., appeals from the judgment in favor

of Appellee Quantum Imaging & Therapeutic Associates, Inc., entered after

the trial court denied Appellant’s request for a new trial on the basis that the

trial court permitted prejudicial testimony to be elicited during trial regarding

the outcome of a prior lawsuit. Appellant claims that the trial court erred in

concluding that he opened the door to the prejudicial testimony. We affirm.

        The trial court summarized the relevant facts of this matter as follows:

        This action commenced on November 22, 2013, with the filing of
        a complaint sounding in breach of contract against Appellee. In
        summary, Appellant alleged that Appellee agreed to hire him on
        or around [January 16, 2009], to perform medical radiology
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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       services.[1] Appellant averred that Appellee knew that Appellant
       had been terminated from, and did not enjoy staffing privileges
       at, Geisinger Medical Center [(Geisinger)] . . . . Appellant stated
       that Appellee was aware that there was ongoing litigation relating
       to the employment separation with Geisinger at the time he was
       hired [(Geisinger litigation)]. In applying for credentials[2] with
       other area hospitals as an employee of Appellee, Appellant was
       required to affirm that his staffing privileges [had never been]
       under suspension, termination, or any other clouds with any other
       hospitals.     Appellant averred that, after consultations with
       employees of Appellee, including staff within Appellee’s human
       resources department, Appellant was instructed to state that his
       staffing privileges were unblemished.

       After an uneventful beginning to his employment, Appellant
       eventually ended up in a dispute with the employees of a third[
       ]party, Pinnacle Health.       Following that dispute, Appellant’s
       staffing privileges at Pinnacle were [temporarily curtailed and
       Appellant was informed in writing that if he had another incident,
       particularly with Pinnacle employees, his employment with
       Appellee would be terminated.            E]ventually[,] Appellant’s
       employment relationship with Appellee was . . . terminated [after
       Appellant initially refused to treat a patient at Pinnacle and
       became hostile with a Pinnacle physician, Dr. Faith Matzoni].
       Appellant filed suit, alleging that his termination was in violation
       of his employment agreement with Appellee,[3] and that Appellee
____________________________________________


1 Appellee signed an initial employment agreement on January 16, 2009. See
Appellant’s Ex. 1. Appellant eventually became a shareholder of Appellee and
signed a shareholder employment agreement on December 21, 2010. See
Appellant’s Ex. 2.

2 Before a doctor may be associated with the staff of a hospital or paid for
services by an insurance company, he or she must complete a process known
as “credentialing,” whereby his or her board certifications and other
qualifications are screened to ensure the doctor is fit to be a part of the staff.
N.T., 9/20/17, at 307-09.

3 Appellant was entitled to 180 days’ written notice if his employment was
terminated without cause and no notice if his employment was terminated for
cause. Appellant’s Ex. 2 at ¶ 3. Appellant asserted in his complaint, and
continues to assert, that his employment with Appellee was terminated



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       or its agents had defamed Appellant by contacting prospective
       employers and advising them to not hire Appellant.

Trial Ct. Op., 1/3/18, at 1-2.

       Prior to trial, Appellant filed two motions in limine.   One sought to

preclude testimony regarding an unemployment compensation hearing

involving Appellant, and the other sought to preclude testimony regarding the

outcome of Appellant’s lawsuit with Geisinger, which was unfavorable to

Appellant. Both motions in limine were granted.

       This matter proceeded to a jury trial from September 18, 2017, through

September 20, 2017. At trial, Appellant testified during redirect examination

that the legal aspects of his termination from Geisinger were “very muddled.”

N.T., 9/19/17, at 139. The trial court initiated a sidebar discussion after this

comment regarding the parties’ positions as to whether testimony of the

outcome of the Geisinger litigation should be permitted. Appellee’s counsel

argued that “the door ha[d] been opened” to permit such testimony, id. at

140, while Appellant’s counsel argued that the “muddled” testimony went to

Appellant’s state of mind at the time he sought employment with Appellee and

the Geisinger litigation was ongoing. Id. Appellant’s counsel also reiterated

the position that Appellee’s employees had urged Appellant to indicate that
____________________________________________


without cause and without notice. Dr. Elizabeth Bergey, president of Appellee,
indicated that Appellant was terminated for cause for violating paragraph 3(b)
of the shareholder employment agreement, which indicates that an
employee’s employment may be terminated for cause if the employee
“engages in materially unprofessional, dishonest, or fraudulent conduct or
conduct which is detrimental to the reputation, character, or standing of
[Appellee].” Appellant’s Ex. 2 at ¶ 3(b).


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his staffing privileges had not been terminated and argued that the result of

the Geisinger litigation was irrelevant and prejudicial. Id.

       The trial court concluded that Appellant’s testimony that the legal

aspects of his termination were “muddled” opened the door to evidence

regarding the outcome of the Geisinger litigation. Trial Ct. Op., 1/3/18, at 7.

During recross-examination of Appellant, over Appellant’s objection, Appellee

asked about the outcome of the Geisinger litigation. N.T., 9/19/17, at 146-

47.    Appellant indicated that he lost the lawsuit, and the trial court

immediately thereafter provided an instruction to the jury indicating that the

jury was not to consider the outcome of the Geisinger litigation in deciding the

instant matter. Id. at 147.

       At the conclusion of the trial, the jury determined that Appellee had not

breached the employment contract between Appellant and Appellee in

terminating Appellant’s employment without six months’ notice. 4 Appellant

filed a timely post-trial motion seeking a new trial on the basis that it was

prejudicial error to require him to answer the question regarding the outcome

of the Geisinger litigation, particularly where the trial court had already ruled

to preclude such evidence in response to Appellant’s motion in limine.

Appellant’s Motion for Post-Trial Relief, 9/28/17, at 2. The trial court denied


____________________________________________


4 At the close of Appellant’s case, Appellee moved for a nonsuit regarding the
defamation claim, which was granted. See N.T., 9/20/17, at 258. Appellant
raises no issues regarding that claim.


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the post-trial motion in an order docketed October 18, 2017. Judgment was

entered in favor of Appellee on November 2, 2017.

      Appellant filed a timely notice of appeal on November 3, 2017, and a

timely court-ordered concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b) on November 17, 2017.             The trial court

complied with Pa.R.A.P. 1925(a).

      Appellant raises the following issue for our review:

      Whether the [t]rial [c]ourt erred as a matter of law and/or abused
      its discretion in failing to grant a new trial after overruling
      counsel’s objection at trial and allowing [Appellee] to inquire into
      matters that were precluded by the [t]rial [c]ourt’s ruling on
      [Appellant’s m]otion in [l]imine, specifically, the outcome of
      [Appellant’s] previous litigation against a different employer.

Appellant’s Brief at 4.

      Appellant asserts that the trial court erred in permitting Appellee to

inquire into the outcome of the Geisinger litigation, particularly where the

outcome of the motion in limine was to preclude this information from being

admitted during the trial. Id. at 10.

      The following exchanges during trial are relevant to this issue:

      [Appellant’s Counsel:] Yes. The issue was the termination from
      Geisinger and how it was to be dealt with on this application form,
      and you testified that you and Mr. [Chris] Therit[, Appellee’s
      director of Human Resources,] had a discussion.

      [Appellant:] Yes. Following the extensive discussions I had with
      Doctor Bergey during the interview process, she made it clear that
      she didn’t consider this a termination, and she didn’t think they
      could do it to me, the legal aspects were at least very muddled
      and that it would also make things additionally complicated.

      [Appellant’s Counsel:] Doctor Edwards --

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     The Court: Hold on just a second. I want to see counsel now.

     (The following discussion occurred at side bar.)

     The Court: Now, with what he just said, I’m almost obligated to
     let him tell what the end of the litigation was. He said it was
     muddled, all screwed up. Now the Third Circuit Court of Appeals
     says you were wrong.

     [Appellant’s Counsel:] Frankly, I was shocked in [Appellee’s
     counsel’s] opening when he mentioned the Geisinger litigation.
     But I have to mention that it’s an elephant in the room, the
     litigation, but not necessarily, Your Honor, the result. But the
     litigation itself, [Appellee’s counsel] had it in his opening. I
     wanted to object, but I didn't want to.

     The Court: But it wasn’t anything about that was a natural thing
     to do. But now, his answer now is it was all muddled, they didn’t
     understand, they didn’t think they could do it. Now, we all know
     legally the Third Circuit Court of Appeals said he was wrong.

     [Appellant’s Counsel:] In the [m]otion in [l]imine, we had this
     issue. And the issue was whether, simply, Your Honor, if Geisinger
     litigation was about whether there was an oral contract or a
     written contract.

     The Court: I agree with that. But he just said it was muddled and
     they didn’t think they could do it. And obviously the court has
     said. I have ruled on that [m]otion in [l]imine was just like the
     workman’s comp. We are not getting to the end result. It is not
     anything to do with that.

     [Appellant’s Counsel:] Right.

     The Court: But now that has changed now.

     [Appellant’s Counsel:] Your Honor, one more point, if I could. The
     issue of the result of the litigation resulted later. This is just his
     mind-set at the time he completed the --

     The Court: But he knows it now.

     [Appellant’s Counsel:]      But not when he completed his
     credentialing applications, Your Honor. He is saying I am suing
     over this. It’s not clear. And, guess what? Our position is
     [Appellee] said you are right, check no. That is the case. The



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      result is irrelevant, and not only irrelevant, it is prejudicial. That
      is my position.

      [Appellee’s Counsel:] I think the door has been opened. I was
      surprised when he mentioned anything about the litigation.

      The Court: Well, you said something about that. I was like, okay,
      it is just, that was a normal thing to do, okay, when you did that.
      But now it has gotten a little further and I think you might be
      entitled to explain.

      The crunch is going to come, you know, the testimony here is
      [Appellee] knew everything about this, they were subpoenaed,
      they knew all about it, but chose to do it. You know and I know
      the argument here is we wanted -- what is this -- an x-radiologist.
      They are in demand. We are willing to overlook stuff. Then when
      it gets -- I mean I know what the end argument is going to be
      here, but like --

      [Appellant’s Counsel:] Okay.

      [Appellee’s Counsel:] Okay.

      (End of side bar discussion.)

N.T., 9/19/17, at 138-41.

      Thereafter,   during   recross-examination,     the   following   exchange

occurred, in which Appellee’s counsel questioned Appellant regarding the

outcome of the Geisinger litigation:

      [Appellee’s Counsel:] You mentioned that you filed a lawsuit
      against Geisinger. Correct?

      [Appellant:] Ultimately there was no choice, yes.

      [Appellee’s Counsel:] And you testified on redirect examination
      that it was muddled about how that termination was handled and
      what the outcome was. Isn’t it true that in your lawsuit, the court
      found --

      [Appellant’s Counsel:] Objection.

      The Court: Overruled. He can answer this one question and I am
      giving that instruction.


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J-A11018-18


      [Appellee’s Counsel:] The court found in favor of Geisinger?

      [Appellant:] The court ruled that they wouldn’t put to a jury
      whether I had a contract or not.

      The Court: Did they rule in favor of Geisinger?

      [Appellant:] On that specific --

      The Court: You did not win that suit. Yes or no?

      [Appellant:] No, I didn’t win that suit.

      The Court: Now, I am instructing you the mere fact that there
      was previous litigation with Geisinger and the outcome of that has
      absolutely nothing to do with this trial. That outcome, that
      answer[,] was just to clarify what he said about well, it was
      confusing, nobody knew. It took a long time to resolve that. You
      put that out of your mind and disregard that totally in deciding
      this specific case.

Id. at 146-47.

      In its Rule 1925(a) opinion, the trial court addressed one potential error

at trial, which was whether Appellant was properly required to testify as to the

outcome of the Geisinger litigation. The trial court indicated that

      Appellant clearly opened the door and rendered the motion in
      limine moot. Appellant’s testimony regarding the confusion and
      muddled waters surrounding the Geisinger litigation went directly
      to the heart of that suit’s resolution, wherein the Third Circuit
      Court of Appeals directly and clearly ruled against Appellant. By
      testifying that the Geisinger [litigation] was muddled and
      complicated, Appellant invited Appellee to present testimony
      directly rebutting that proposition.

Trial Ct. Op., 1/3/18, at 7. The trial court continued, indicating that if it were

an error to permit testimony of the outcome of the Geisinger litigation,

      the court properly gave a cautionary instruction to the jury, which
      would have cured any harm that accrued to Appellant. Here, the
      jury was specifically instructed that Appellant’s testimony
      regarding the Geisinger verdict was only to be used for the narrow
      purpose of clearing up Appellant’s earlier testimony. This court

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J-A11018-18


      specifically noted that the ultimate holding in Appellant’s lawsuit
      against Geisinger was entirely irrelevant to this case, besides the
      value in clarifying Appellant’s testimony. See, e.g., Krysmalski
      by Krysmalski v. Tarasovich, [] 622 A.2d 298, 306 (Pa. Super.
      1993) (wherein the Superior court noted that testimony regarding
      an issue not for the jury’s consideration, followed by the prompt
      delivery of a clear cautionary instruction, would not create an
      abuse of discretion or prejudice warranting a new trial).

Id.

      Appellant argues that “[t]he purpose of a [m]otion in [l]imine is to

exclude highly prejudicial evidence before trial and to preclude evidence from

ever reaching a jury that may prove to be so prejudicial that no instruction

could cure the harm to the party.”       Appellant’s Brief at 12.   Moreover,

Appellant contends that permitting the jury to know the outcome of the

Geisinger litigation was prejudicial because it “led the jury to believe that

[Appellant was] a serial litigant who repeatedly [was] fired, sue[d] the

employer, and subsequently lost the lawsuits.” Id. at 15. Appellant asserts

that he did not open the door to allowing the previously precluded testimony

because he argues that nothing in the statement “the legal aspects were at

least very muddled” served to “implicate[] a lawsuit with Geisinger.” Id. at

13.   Appellant further asserts that “[i]t was counsel for [Appellee] who

unnecessarily introduced the Geisinger litigation in his opening statement[,] .

. . leaving [the jury] to wonder and speculate as to the outcome of the prior

litigation.” Id. at 13-14.

      Our review of a challenge to a new trial order involves a two-step

process. “First, the appellate court must examine the decision of the trial



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court that a mistake occurred.” Harman ex rel. Harman v. Borah, 756 A.2d

1116, 1122 (Pa. 2000). During the first step of the analysis,

      the appellate court must apply the correct scope of review, based
      on the rationale given by the trial court. There are two possible
      scopes of review to apply when appellate courts are determining
      the propriety of an order granting or denying a new trial. There
      is a narrow scope of review: [w]here the trial court articulates a
      single mistake (or a finite set of mistakes), the appellate court’s
      review is limited in scope to the stated reason, and the appellate
      court must review that reason under the appropriate standard.

         [Conversely,] [i]f the trial court leaves open the possibility
         that reasons additional to those specifically mentioned
         might warrant a new trial, or orders a new trial “in the
         interests of justice,” the appellate court applies a broad
         scope of review, examining the entire record for any reason
         sufficient to justify a new trial.

                                      ***

      The appropriate standard of review also controls this initial layer
      of analysis. If the mistake involved a discretionary act, the
      appellate court will review for an abuse of discretion. If the
      mistake concerned an error of law, the court will scrutinize for
      legal error.

Id. at 1122-23 (citations and some quotation marks omitted). If a mistake

has been made at trial, the appellate court “must then determine whether the

trial court abused its discretion in ruling on the request for a new trial.” Id.

at 1123 (citation omitted).

      When determining whether the trial court abused its discretion,
      the appellate court must confine itself to the [proper] scope of
      review[.] If the trial court has provided specific reasons for its
      ruling on a request for a new trial, and it is clear that the decision
      of the trial court is based exclusively on those reasons, applying a
      narrow scope of review, the appellate court may reverse the trial
      court’s decision only if it finds no basis on the record to support
      any of those reasons. As a practical matter, a trial court’s
      reference to a finite set of reasons is generally treated as

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      conclusive proof that it would not have ordered a new trial on any
      other basis. Alternatively, where the trial court leaves open the
      possibility that there were reasons to grant or deny a new trial
      other than those it expressly offered, or the trial court justifies its
      decision on the “interests of justice,” an appellate court must
      apply a broad scope of review and affirm if it can glean any valid
      reason from the record.

Id. at 1123-24 (citations and some quotation marks omitted).

      We review a trial court ruling on the admission of evidence under an

abuse of discretion standard. Stumpf v. Nye, 950 A.2d 1032, 1035-36 (Pa.

Super. 2008). “An abuse of discretion is not merely an error of judgment, but

if in reaching a conclusion the law is overridden or misapplied, or the judgment

exercised is manifestly unreasonable, or the result of partiality, prejudice, bias

or ill-will, . . . discretion is abused.” Id. at 1036 (citation omitted).

      A motion in limine has two purposes:

      1) to provide the trial court with a pre-trial opportunity to weigh
      carefully and consider potentially prejudicial and harmful
      evidence; and 2) to preclude evidence from ever reaching a jury
      that may prove to be so prejudicial that no instruction could cure
      the harm to the defendant, thus reducing the possibility that
      prejudicial error could occur at trial which would force the trial
      court to either declare a mistrial in the middle of the case or grant
      a new trial at its conclusion.

Commonwealth v. Metzer, 634 A.2d 228, 232 (Pa. Super. 1993) (citing 75

Am. Jur. 2d §§ 94, 98). A ruling on a motion in limine that excludes evidence

from trial may be rendered moot where the party that benefited from the

ruling opens the door regarding the previously precluded evidence.              See

Commonwealth v. Cannon, 563 A.2d 918, 922-23 (Pa. Super. 1989).




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       In Cannon, two defendants asserted that the trial court erred in

granting the Commonwealth’s motion in limine regarding a victim’s prior fraud

conviction.   Id. at 921.    However, because the Commonwealth elicited

information regarding the conviction during trial, this Court determined that

the defendants’ argument was no longer relevant. Id. at 922-23.

       A curative instruction may preclude the need for a new trial where

testimony regarding an issue not for the jury’s consideration is followed

promptly by a clear cautionary instruction.    See Krysmalksi, 622 A.2d at

306.

       In Krysmalski, a reckless driver injured three children who were

waiting for their mother at the front of a grocery store.     Id. at 301. The

Krysmalskis brought suit against the driver. Id. Prior to trial, Mrs. Krysmalski

passed away.    Id.   At trial, one of the children, when asked if there was

anything else he wanted to say about the event, stated that he wanted

“everybody to know that this helped kill my mother.” Id. at 306. Immediately

after the statement was made and defense counsel objected, the court gave

a cautionary instruction that the answer was not one the witness was qualified

to give that that it should be totally disregarded by the jury. Id. This Court

found no abuse of discretion or prejudice warranting a new trial based upon

the prompt delivery of a clear cautionary instruction. Id. But see Poust v.

Hylton, 940 A.2d 380, 387 (Pa. Super. 2007) (holding that where counsel

used the word “cocaine” in questioning a witness after the mention of cocaine

had been precluded in a ruling on a motion in limine, a mistrial was warranted

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and “it [was] abundantly clear that no curative instruction could have

obliterated the taint of defense counsel’s use of the word”).

       Here, while we agree with Appellant that a motion in limine is designed

to prevent prejudicial information from reaching the jury, we agree with the

trial court that Appellant’s statement that the legal aspects of his termination

from Geisinger were “muddled” opened the door to permit the jury to hear

the outcome of the Geisinger litigation.5 See Cannon, 563 A.2d at 922-23.

Thus, we discern no basis to disturb the trial court’s determination that it did

not commit an abuse of discretion in allowing the testimony regarding the

outcome of the Geisinger litigation. See Harman, 756 A.2d at 1123.

       Even if the trial court abused its discretion in permitting Appellant to

testify regarding the outcome of the Geisinger litigation, the decision not to

grant the request for a new trial was not an abuse of discretion. The trial

court indicated that even if it committed an error in permitting the testimony,

it declined to grant a new trial because it provided a clear cautionary

instruction.    Trial Ct. Op., 1/3/18, at 7.       We agree that the trial court’s

cautionary instruction was specific and timely provided to the jury.          See

Krysmalski, 622 A.2d at 306. Moreover, because Appellant opened the door

____________________________________________


5  As to Appellant’s assertion that Appellee’s counsel was the first to introduce
the Geisinger litigation into the trial during his opening statement, we note
that the motion in limine sought only to preclude the outcome of the Geisinger
litigation, not the fact that litigation occurred. See Appellant’s Mot. in Limine,
9/1/17, at 2, 4-5. Thus, Appellee’s counsel did not “taint” the proceedings by
mentioning the litigation. See, e.g., Poust, 940 A.2d at 387.


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to the introduction of the contested testimony, the issue of taint that was

present in Poust was not present here.       See Poust, 940 A.2d at 387.

Because the record contains support for the specific reasons the trial court

relied upon in not granting a new trial, we may not reverse the trial court’s

decision. See Harman, 756 A.2d at 1123.

     Judgment affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 07/18/2018




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