J-A21032-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    CRAIG STELTZ                               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    WILLIAM C. MEYERS, M.D.; VINCERA           :
    CORE INSTITUTE AND VINCERA                 :
    INSTITUTE                                  :   No. 179 EDA 2019
                                               :
                       Appellants              :

              Appeal from the Order Entered December 12, 2018
     In the Court of Common Pleas of Philadelphia County Civil Division at
                       No(s): March Term 2016- 01720


BEFORE: BOWES, J., OLSON, J., and FORD ELLIOTT, P.J.E.

DISSENTING MEMORANDUM BY BOWES, J.:                      FILED APRIL 14, 2020

       I respectfully dissent. While I recognize that this Court’s standard of

review over a trial court’s award of a new trial is deferential, this case presents

that rare circumstance in which the trial court has abused its discretion. In

particular, I believe that both the trial court and the Majority have

mischaracterized the context of the question posed by Appellant’s counsel and

overstated the existence of prejudice. Accordingly, I would reverse the trial

court’s order granting a new trial, and permit the jury’s verdict to stand.

       Appellee Craig Steltz’s claims for relief were directed at an alleged

breach of the professional standard of care1 by Appellant William C. Meyers,
____________________________________________


1  Mr. Steltz’s expert David Treen, Jr., M.D. (“Dr. Treen”), espoused his view
of the applicable standard of care. See N.T. Trial, 8/6/18, at 5 (“[Dr. Treen’s]
J-A21032-19



M.D. (“Dr. Meyers”). Specifically, Mr. Steltz underwent surgery on May 1,

2014, for athletic pubalgia—or a “sports hernia”—in his right leg. Mr. Steltz

was, at that time, a player for the Chicago Bears of the National Football

League (“NFL”). During practice on June 19, 2014, Mr. Steltz felt a “pop” in

his right leg. Mr. Steltz returned to Dr. Meyers for a consultation on June 30,

2014. At bedrock, this case concerns competing interpretations of an MRI

taken that day that was reviewed by, inter alia, Dr. Meyers, Adam Zoga, M.D.

(“Dr. Zoga”), and Peter Read, M.D. (“Dr. Read”).

       Both Dr. Meyers and Dr. Zoga testified that they collectively reviewed

and discussed the June 30, 2014 MRI of Mr. Steltz’s right leg that same day,

and concurred in the assessment that the image indicated “a little bit of scar

breakup” and fluid at the surgery site. See N.T. Trial, 8/7/18 (Part II), at 14;

see also N.T. Trial, 8/9/18 (Part II), at 47, 49. Based upon this diagnosis,

Mr. Steltz returned to his training and practice regimen with the Chicago

Bears. Ultimately, Mr. Steltz was released from the athletic organization.

       As pled, Mr. Steltz’s case focused upon a report that was reviewed and

approved by Dr. Read,2 and which was provided to Appellants at some point
____________________________________________


testimony revealed the steadfast opinion, whether or not the jury chooses to
believe it, that [Dr. Read’s interpretation of] the June 30, 2014 MRI should
have been disclosed to Mr. Steltz, and the failure to do so deprived Mr. Steltz
of the opportunity for treatment . . . .”).

2 Although Dr. Read approved the report interpreting the June 30, 2014 MRI
as showing a “complete tear” of Mr. Steltz’s common adductor muscles, it was
actually authored by a trainee named Zombor Zoltani. See N.T. Trial, 7/31/18



                                           -2-
J-A21032-19



after their June 30, 2014 assessment of Mr. Steltz had already been

completed and communicated to Mr. Steltz.3 See Complaint, 5/25/16, at ¶¶

19-46. That report diverged significantly from the initial assessment rendered

by Dr. Meyers and Dr. Zoga, and instead concluded that Mr. Steltz had

suffered a “complete tear” of his adductor muscle. See N.T. Trial, 7/31/18

(Part I), at 62.     Although this report was ultimately found in Appellants’

records, it is not clear how or at what point that report was transmitted to

Appellants.4 See N.T. Trial, 7/31/18 (Part II), at 52-53.

       Regardless, Mr. Steltz’s claims for relief revolve around the allegedly

delayed disclosure of the opinions expressed in Dr. Read’s report and the

validity of Dr. Read’s underlying analysis, as made clear in both his opening

and closing statements. See N.T. Trial, 7/31/18 (Part I), at 23-28; N.T. Trial,

8/10/18 (Part II), at 16-17 (“The negligence of Dr. Meyers is [his] arrogance

of certainty about an injury that was interpreted completely different[ly]. His

failure to communicate to his patient and . . . his patient’s employer . . . that

there was evidence of a tear.”).          Indeed, even Mr. Steltz testified that he
____________________________________________


(Part II), at 13-14. Dr. Read was the attending radiologist who reviewed it,
concurred in its analysis, and approved the report. Id.

3 Dr. Read did not review and approve the report created by Mr. Zoltani until
July 3, 2014, and he did not dictate it until July 5, 2014. See N.T. Trial,
7/31/18 (Part II), at 14-16, 53.

4  Dr. Meyers testified that he “likely” saw the report for the first time on
August 27, 2014, when Mr. Steltz requested a copy of his medical records
after being released by his employer. Id. at 54, 56. Mr. Steltz testified that
he first became aware of the report on September 11, 2014, when he received
a copy of his records. See N.T. Trial, 8/2/18 (Part II), at 79.

                                           -3-
J-A21032-19



blamed Dr. Meyers specifically because of his alleged misinterpretation of the

MRI. See N.T. Trial, 8/2/18 (Part II), at 88 (“It wasn’t the Bears’ doctor I

went and saw, who read the MRI, and so I felt like Dr. Meyers was at fault for

it and not the Bears.”).

       Despite the critical nature of the June 30, 2014 MRI and Dr. Read’s

assessment of the injury it depicted, it is undisputed that Mr. Steltz did not

present any corroborating expert testimony from a musculoskeletal radiologist

at trial.5 Dr. Read testified on behalf of Mr. Steltz as a fact witness, and was

never qualified as an expert.6 See Pa.R.E. 702. An expert on musculoskeletal

____________________________________________


5  In relevant part, Appellee presented testimony from David Treen, Jr., M.D.
(“Dr. Treen”), who was qualified as an expert in “athletic pubalgia” and
testified that his physical examination of Mr. Steltz indicated that he had a
torn adductor muscle. See N.T. Trial, 8/1/18 (Part I), at 55-58. However, he
freely confessed that he could not opine about the competing interpretations
of the June 30, 2014 MRI. Id. at 92-93 (“The two reports describe two totally
different findings. I don’t know which one is true and which one is false,
. . . .” (emphasis added)). Along similar lines, Mr. Steltz also presented
videotaped testimony from Benton Emblom, M.D., who was qualified as an
expert in orthopedic surgery. See N.T. Trial, 8/2/18 (Part I), at 40-41. He
similarly opined that Mr. Steltz had suffered a torn adductor muscle at some
indeterminate point. See N.T. Trial, 8/2/18 (Part II), at 83-84.

6   Mr. Steltz went to great lengths to establish Dr. Read’s bona fides with
respect to musculoskeletal radiology. See N.T. Trial, 7/31/18 (Part I), at 49-
51; N.T. Trial, 7/31/18 (Part II), at 25-26. However, he freely allowed that
Dr. Zoga was a far more experienced and accomplished radiologist with
respect to musculoskeletal imaging. See N.T. Trial, 7/31/18 (Part II), at 6-8.
The burden for such qualification is quite deferential. “[T]he test to be applied
when qualifying an expert witness is whether the witness has any reasonable
pretension to specialized knowledge on the subject under investigation. If he
does, he may testify and the weight to be given to such testimony is for the
trier of fact to determine.” Freed v. Geisinger Med. Ctr., 971 A.2d 1202,



                                           -4-
J-A21032-19



radiology was listed as potential witness on Mr. Steltz’s pre-trial statement.

See Plaintiff’s Pretrial Memorandum, 2/15/18, at 4 (identifying Jamie

Checkoff, M.D. as an “expert”). However, Dr. Checkoff did not testify at trial,

and no other qualified expert addressed the merits of Dr. Read’s analysis on

behalf of Mr. Steltz.

       After Mr. Steltz had rested his case-in-chief, Appellants offered the

testimony of Dr. Jana Crain (“Dr. Crain”), a musculoskeletal radiologist who

was qualified as an expert in “interpreting MRI images of the core muscle

region.” See N.T. Trial, 8/6/18 (Part II), at 42, 52. Overall, Dr. Crain flatly

disagreed with the conclusions in the report approved by Dr. Read. Id. at 64-

65, 71. Thereafter, Dr. Zoga testified as both a fact and expert witness. See

N.T. Trial, 6/7/18 (Part I), at 41-43. However, Appellants’ qualification of Dr.

Zoga was unusually fraught with an extended series of inflammatory questions

and remarks by Mr. Steltz’s counsel that directly touched upon the respective

credibility of not only Dr. Zoga, but also Dr. Read.

       Mr. Steltz’s counsel opened this qualification cross-examination with a

series of remarks concerning Dr. Zoga’s “enormous, enormous ego.” Id. at

29.   An immediate objection was sustained.       Id. at 30.    Moments later,

however, Mr. Steltz’s counsel again insinuated that Dr. Zoga was inflating his

professional acumen, asking whether other “doctors come up to you, boy, Dr.

____________________________________________


1209 (Pa. 2009) (emphasis in original; internal citation omitted). Still, Mr.
Steltz apparently chose to concede the opportunity to allow his key witness to
explain his interpretation of the MRI.

                                           -5-
J-A21032-19



Zoga, you’re the go-to guy?” Id. at 31. Another objection was sustained.

Id. at 32. Counsel launched into a series of inquiries concerning Dr. Read’s

professional qualifications and credibility, first suggesting that Dr. Read must

be competent and accurate in his work due to the fact that he hadn’t been

“fired” after this incident. Id. at 35-36 (“Wouldn’t you, if you knew that one

of your people couldn’t do his job right—you don’t want him analyzing images

that affect the lives of people, do you?”). For a third time, Appellants objected

on the ground that this testimony was inappropriately touching upon Dr.

Read’s credibility. The trial court, again, sustained the objection. Id. at 36.

      However, Mr. Steltz’s counsel persisted and continued to cross-examine

Dr. Zoga about Dr. Read, including adducing testimony that Dr. Read: (1) was

a board-certified radiologist; (2) completed a fellowship in musculoskeletal

radiology; (3) was still employed by his then-employer; and (4) continued to

review and interpret radiology images, including MRI.            Id. at 36-37.

Eventually, defense counsel raised another objection when Mr. Steltz’s counsel

began to examine Dr. Zoga regarding his substantive review of the report

approved by Dr. Read. Id. at 44-47. Ultimately, the trial court qualified Dr.

Zoga as an expert in musculoskeletal radiology without any discrete objections

to his qualifications. Id at 47.

      Throughout the qualification examination of Dr. Zoga, Mr. Steltz’s

counsel comported himself in a manner that smacked of unprofessionalism,

even based upon the cold record. His questions to Dr. Zoga and his responses

to defense counsel and the trial court were peppered with sarcastic asides and

                                      -6-
J-A21032-19



feigned contrition, despite admonitions from the trial court. Id. at 29-31, 33-

36, 40-42, 46.

      Immediately after this prolonged and heated exchange, defense counsel

advanced the line of questioning that precipitated this appeal:

      DEFENSE COUNSEL: [H]ow many musculoskeletal radiologists do
      you think there are in the country[,] ballpark?

      DR. ZOGA: So if the definition is radiologists who interpret
      musculoskeletal imaging, it has to be five thousand.

      DEFENSE COUNSEL: Five thousand. Five thousand of those
      radiologists and [Mr. Steltz] couldn’t find one of them to come into
      this courtroom to support Dr. Read, did you know that?

Id. at 48. The question was not answered, but it did provoke a strenuous

objection from Mr. Steltz’s counsel, who requested a mistrial. Defense counsel

responded that: (1) the question was simply a fair response to Mr. Steltz’s

counsel’s repeated “borderline” comments; and (2) the “only prejudice” to Mr.

Steltz was that the comment was “factual.” Id. at 51.

      The trial court declined to grant a mistrial, noting that both parties had

made “occasional statements” that were problematic. Id. at 52. Instead, the

trial court issued a curative instruction regarding defense counsel’s allegedly

inappropriate question, addressing the jury as follows:

      When we were last here, there was an exchange between the
      counsel and I just wanted to state, as I stated at the beginning of
      the trial, that the statements and arguments made by counsel do
      not constitute evidence. They are not the facts. Evidence includes
      any testimony of witnesses, documents, and other exhibits
      submitted during the trial constitute facts and I just ask that you
      understand that particular principle, as you evaluate the evidence,
      okay.

                                     -7-
J-A21032-19



      So the parties or counsel have agreed to proceed in a civil fashion.
      So we’ll continue. Thank you.

N.T. Trial, 8/7/18 (Part II), at 4-5.

      During defense counsel’s closing statement, he reiterated his earlier

point regarding the lack of expert support for Mr. Steltz’s position: “Why

wouldn’t they come in and hire a radiologist to tell us, yeah, I looked at those

images and Dr. Read is correct.” N.T. Trial, 8/10/18 (Part II), at 52; see also

id. at 33 (“You heard from musculoskeletal radiologists that there was no tear,

and that there was no retraction . . . . It’s unquestionable, undeniable, and

[Mr. Steltz] brought in no one to dispute it.”). Pertinent to our review, no

objection was lodged by Mr. Steltz with respect to these statements. Id.

      Following a verdict in favor of Appellants, the trial court ultimately

granted Mr. Steltz’s post-trial motion for a new trial, grounding its reasoning

in three separate findings, namely: (1) that defense counsel’s question was

inappropriate; (2) that the question was also prejudicial as it undermined the

validity of the entire trial; and (3) that the prejudice was of such a type and

magnitude that it could not be remedied via a curative instruction. See Trial

Court Opinion, 12/12/18, at 6-7 (“There was no curative instruction this Court

could have delivered to the jury to fix the harm caused by [Appellants’]

counsel’s egregious statement that not one musculoskeletal radiologist among

the 5,000 who practice in the United States could be found to support [Dr.

Read’s] reading of the MRI.”).




                                        -8-
J-A21032-19



      The learned Majority has largely concurred in the trial court’s legal and

factual assessment. I must respectfully dissent with respect to each finding.

      The legal standards that govern our review of a trial court’s awarding of

a new trial are well-established, and admittedly deferential to the trial court’s

decision. As a general matter, a trial court engages in a two-step process

when responding to a request for a new trial by determining: (1) whether one

or more mistakes occurred at trial; and (2) whether that mistake is a sufficient

basis for granting a new trial. See Ferguson v. Morton, 84 A.3d 715, 720-

21 (Pa.Super. 2013).      An appellate court essentially engages in the same

analysis in reviewing the decision of the trial court:

      First, the appellate court must examine the decision of the trial
      court that mistake occurred. . . . 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.

      If the appellate court agrees with the determination of the trial
      court that a mistake occurred, it proceeds to the second level of
      analysis. The appellate court must then determine whether the
      trial court abused its discretion in ruling on the request for a new
      trial. An abuse of discretion exists when the trial court has
      rendered a judgment that is manifestly unreasonable, arbitrary,
      or capricious, has failed to apply the law, or was motivated by
      partiality, prejudice, bias, or ill will. A finding by an appellate court
      that it would have reached a different result than the trial court
      does not constitute a finding of an abuse of discretion. Where the
      record adequately supports the trial court’s reasons and factual
      basis, the court did not abuse its discretion.

Id. at 720 (internal citations and quotation marks omitted).

      Where, as 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

                                        -9-
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reason, and the appellate court must review the reason under the appropriate

standard.”7 Harman ex rel. Harman v. Borah, 756 A.2d 1116, 1123 (Pa.

2000). However, this assessment is not merely focused upon the mistake

itself, but also properly includes the attendant “circumstances under which the

statements were made and the precaution taken by the trial court and counsel

to prevent such remarks from having a prejudicial effect.”            Siegal v.

Stefanyszyn, 718 A.2d 1274, 1277 (Pa.Super. 1998).

       As the Majority correctly points out, “[i]t is improper for counsel to

present facts to the jury which are not in evidence and which are prejudicial

to the opposing party,” such that “counsel may not comment on evidence to

the effect that it removes an issue of credibility from the jury.” Young v.

Washington Hosp., 761 A.2d 559, 563 (Pa.Super. 2000) (emphasis added).

       The Majority relies heavily upon the holding in Siegal, supra, to affirm

the trial court’s conclusion that defense counsel committed a “mistake” by

questioning Dr. Zoga regarding Mr. Steltz’s self-evident lack of expert

radiology testimony.        See Majority Memorandum at 11-12.        In Seigal,

defense counsel in a medical malpractice case made an improper statement

during closing arguments, which ultimately resulted in the awarding of a new



____________________________________________


7 The trial court stated that it relied solely upon defense counsel’s question in
granting a new trial. See Trial Court Opinion, 3/4/19, at 4 (“We wish to take
this opportunity to disabuse [Appellants] of the notion that we might have
relied on misconduct other than defense counsel’s improper question to Dr.
Zoga in granting a new trial.”).

                                          - 10 -
J-A21032-19


trial. At the outset of the trial in Siegal, one of plaintiff’s fact witnesses—Dr.

John Shore—had been precluded from offering expert testimony that the

defendant’s actions fell below the “applicable standard of care.” Id. at 1276.

During closing, defense counsel directly referred to this lack of testimony from

Dr. Shore, stating that its absence indicated that no malpractice occurred. Id.

On appeal, this Court concluded that these statements were improper. Id. at

1277 (“[C]ounsel’s argument was clearly improper, as it conveyed to the jury

something that counsel knew to be untrue, i.e., that Dr. Shore’s opinion was

not favorable to appellants’ case.”). The statement “so polluted the jury that

the effect could not be cured by the curative instruction that was given.” Id.

       Instantly, defense counsel’s objectionable question was as follows: “Five

thousand of those radiologists and [Mr. Steltz] couldn’t find one of them to

come into this courtroom to support Dr. Read, did you know that? N.T. Trial,

8/7/18 (Part I), at 48. In particular, the Majority has focused upon the use of

the words “could not find” as proof positive that defense counsel was somehow

misrepresenting the fact that Mr. Steltz had listed Dr. Checkoff as a potential

expert witness:

       Appellants’ counsel, having received a copy of [Mr. Steltz’s] pre-
       trial memorandum, was, therefore, put on notice that [Mr. Steltz]
       did find and planned to call as a potential witness another
       radiologist whose findings concurred[8] with Dr. Read’s findings
____________________________________________


8 Like the trial court, the Majority has characterized Dr. Checkoff’s report as
corroborating Dr. Read’s interpretation of the June 30, 2014 MRI. See
Majority Memorandum at 11; Trial Court Opinion, 12/12/18, at 11 n.3.



                                          - 11 -
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       that the June 30, 2014 post-surgery MRI revealed a tear in the
       adductor longus muscle, an allegation that formed the basis of
       [Mr. Steltz’s] complaint. As such, when appellant’s counsel stated
       that [Mr. Steltz] “couldn’t find” verses “did not find” another
       radiologist who would agree with Dr. Read’s findings, his comment
       was analogous to the statement made by counsel in Siegal.

Majority Memorandum at 11.

       With all due respect to the learned Majority, Siegal is inapposite. By

focusing solely upon the verb utilized by defense counsel to the exclusion of

all other substance, the Majority has mischaracterized the basic import of

counsel’s question. In relevant part, defense counsel’s statement betrayed

no misrepresentation, but drew valid attention to the indisputable fact that

Mr. Steltz had not presented expert testimony regarding the correctness of

Dr. Read’s interpretation of the June 30, 2014 MRI, a critical issue in this case.

In contrast to Siegal, there was no ruling from the trial court precluding Mr.

Steltz from presenting Dr. Checkoff’s expert testimony.          Hence, defense

counsel was not exploiting an adverse ruling, but properly referring to an

____________________________________________


However, Dr. Checkoff’s report concludes that the June 30, 2014 MRI indicates
only a “partial tear” of the adductor muscle.         See Plaintiff’s Pretrial
Memorandum, 2/15/18. I also note that “[i]t is well established that a report
prepared by an expert who is not called to testify as a witness is hearsay.”
Semieraro v. Commonwealth Utility Equipment Corp., 544 A.2d 46, 47
(Pa. 1988); see also Kopytin v. Aschinger, 947 A.2d 739, 745 (Pa.Super.
2008) (same). Permitting Mr. Steltz to benefit from the contents of an expert
report that originated from a non-testifying witness is particularly suspect in
light of the rationale behind this maxim. See Phillips v. Gerhart, 801 A.2d
568, 575 (Pa.Super. 2002) (observing that opinions contained in medical
reports are inadmissible “unless the doctor who prepared the report is
available for in-court, cross-examination regarding the accuracy, reliability,
and veracity of his or her opinion”).



                                          - 12 -
J-A21032-19



unforced error: that Mr. Steltz offered no testimony from a musculoskeletal

radiologist corroborating Dr. Read’s interpretation of the June 30, 2014 MRI.9

       As such, I do not perceive defense counsel’s question to be the flagrant

misrepresentation of a fact outside of the jury’s knowledge as identified by

the Majority, but a question duly predicated upon: (1) the lack of expert

radiology testimony presented by Mr. Steltz; and (2) Dr. Zoga’s testimony

that there were approximately 5,000 musculoskeletal radiologists potentially

available for such consultations.              Both of these facts were of-record.

Moreover, Dr. Read’s interpretation of the June 30, 2014 MRI was both the

subject upon which Dr. Zoga was called to testify, and the lynchpin of Mr.

Steltz’s case.     Although inartfully phrased, I do not believe that defense

counsel’s question here is in the same disfavored category as the statement

identified in Siegal.

       I also believe that the Majority and the trial court have failed to properly

view the entirety of the circumstances surrounding defense counsel’s question

in assessing this “mistake.” Immediately before defense counsel asked his

question, Mr. Steltz’s counsel had just finished attacking Dr. Zoga’s credibility,

as bolstering Dr. Read’s interpretation of the June 30, 2014 MRI, over

numerous sustained objections. See N.T. Trial, 8/7/18 (Part I), at 29-47. I

note that “[e]ven an otherwise improper comment may be appropriate if it is
____________________________________________


9 At the close of the defense case, Mr. Steltz was afforded an opportunity to
present rebuttal testimony, but largely limited his presentation to
demonstrative testimony not relevant to this appeal. See N.T. Trial, 8/10/18
(Part I), at 41-53. No rebuttal expert testimony was adduced.

                                          - 13 -
J-A21032-19



in fair response to [opposing] counsel’s remarks.”          Commonwealth v.

Burno, 94 A.3d 956, 974 (Pa. 2014).

       Stated directly, Mr. Steltz’s counsel’s pursued an inflammatory and

inappropriate line of interrogation with Dr. Zoga regarding both his credibility,

and that of Dr. Read.        As Appellants have argued, I believe that the fair

response doctrine applies quite aptly to these circumstances.10         Counsel’s

remarks do not constitute reversible error where they are “a reasonable

response, in both scope and force, to trial counsel’s attack on the witness’

credibility.” Commonwealth v. Hanible, 30 A.3d 426, 470 (Pa. 2011).

       Here, defense counsel’s single question appears quite proportional in

light of the conduct of Mr. Steltz’s counsel detailed above. Specifically, Mr.

Steltz’s counsel was responsible for initially broaching the subject of credibility

on multiple fronts during his cross-examination of Dr. Zoga. Moreover, he did

so in a way that was clearly calculated to buttress Dr. Read’s credibility and

diminish Dr. Zoga’s credibility. In the face of such gamesmanship during an

adversarial contest, defense counsel cannot be expected to stand mute.

       In short, I must part ways from the Majority with respect to its

affirmance of the trial court’ conclusion that defense counsel’s question was


____________________________________________


10 See Appellants’ brief at 22 (arguing that even if defense counsel’s question
“broached an improper subject,” it was nonetheless a “fair response” to the
questioning perpetrated by Mr. Steltz’s counsel); see also N.T. Trial, 8/7/18
(Part I), at 51 (same argument preserved at trial).




                                          - 14 -
J-A21032-19



inappropriate.11 With specific reference to our standard of review, I do not

believe that the record sufficiently supports the legal and factual assessments

rendered by both the Majority and the trial court. While my own analysis

would end at this point, I will also briefly address the remainder of the

Majority’s contentions.

       “A new trial is not warranted merely because some irregularity occurred

during the trial . . . .” Harman, supra at 1121. The award of a new trial as

a result of improper conduct by counsel is an extraordinary remedy, and is

only appropriate if “the unavoidable effect of the conduct or language was to

prejudice the factfinder to the extent that the factfinder was rendered

incapable of fairly weighing the evidence and entering an objective verdict.”

Poust v. Hylton, 940 A.2d 380, 385 (Pa.Super. 2007).

       The Majority’s assessment of the second prong of our analysis, i.e., the

prejudicial effect of defense counsel’s question, also relies quite heavily on its

presumption that defense counsel somehow took “liberties” with the facts.

See Majority Memorandum at 14 (citing Young, supra at 561; Siegal, supra

at 1277). As indicated above, I do not concur in the assessments of defense

counsel’s statements under the rubric provided by Siegal and Young. In the

absence of the factual distortion relied upon by the Majority, I find the

following discussion from Ferguson instructive:

____________________________________________


11 See Demosthenes, The Oration of Demosthenes on the Crown, (1st ed.,
1868) at 33 (translated by Sir R.P. Collier) (“But the facts speak for
themselves, they are too plain.”).

                                          - 15 -
J-A21032-19


      A trial in an American court is distinctly an adversary proceeding
      and is therefore bound at times to excite counsel into making
      statements overladen with partiality.        However, so long as
      decorum is maintained, and there is no leaving the highway of fact
      to agitate in the marshes of palpable exaggeration, unwonted
      characterizations, hortatory appeals to latent prejudices, and
      improper imputations of gross motives, there is no reason why
      lawyers should not be permitted to express themselves in such
      manner as they believe best serves the interests of justice.

Ferguson, supra at 723 (quoting Rondinelli v. City of Pittsburgh, 180

A.2d 74, 77-78 (Pa. 1962)).

      To my mind, the conclusion that defense counsel’s single question

undermined confidence in the trial as a whole is not adequately supported by

the record or the law. Accord Ferguson, supra at 725 (“[I]t is self-evident

that prejudice mounts as the tenor of the comments in question grows more

flagrantly improper and the frequency of similar comments increases.”). To

the extent that the Majority claims that defense counsel’s question “removed”

the determination of Dr. Read’s credibility from the jury, I re-emphasize that

it was Mr. Steltz’s counsel who first raised that issue with Dr. Zoga during an

extensive cross-examination. See N.T. Trial, 6/7/18 (Part I), at 33-47.

      Finally, the Majority also relies upon Siegal in support of its conclusion

that the trial court’s curative instruction was insufficient.     See Majority

Memorandum at 14. In Siegal, the trial court’s curative instruction was found

to be insufficient because it “did not accurately convey to the jury what was

true, i.e., that [defense] counsel knew that Dr. Shore’s opinion would have

favored [plaintiff’s] position.” Siegal, supra at 1277.


                                    - 16 -
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      As explained above, I do not find Siegal to be an adequate parallel to

the instant case. Here, the trial court issued a curative instruction directing

the jury to disregard the contents of defense counsel’s question. See N.T.

Trial, 8/7/18 (Part II), at 4-5. Accordingly, I also fail to see why this curative

instruction was insufficient to dispel any potential for prejudice.          See

Ferguson, supra at 725 (“Jurors are presumed to obey the court’s

instructions, and, if ever an inappropriate comment could be cured by

sufficient correction and admonition from the bench, the trial court’s efforts in

this case would suffice.”); see also In re Smith, 579 A.2d 889, 896

(Pa.Super. 1990) (“[T]he jury is presumed to have acted within the legal

parameters established by the court and with a proper evaluation and

weighing of the evidence.”).

      Based on the foregoing discussion, I respectfully dissent.




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