Z.F.I v. Bethanna, W. ( 2020 )

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2020 PA Super 286Z.F.1 AND Z.F.2, AS MINORS, BY : IN THE SUPERIOR COURT OF
AND THROUGH THEIR PARENT AND : PENNSYLVANIA
NATURAL GUARDIAN, [V.B.] :
:
:
v. :
:
:
BETHANNA, WAYNE AND ROSELLA : No. 1425 EDA 2019
KEENY (H/W), DEFENDER :
ASSOCIATION OF PHILADELPHIA, :
ROGER KIMBER, JR., M.D. AND :
WELSH MOUNTAIN HEALTH :
CENTERS D/B/A MEADOW CREEK :
FAMILY PRACTICE :
:
:
APPEAL OF: DEFENDER :
ASSOCIATION OF PHILADELPHIA :
:
Appeal from the Judgment Entered March 29, 2019
In the Court of Common Pleas of Philadelphia County Civil Division at
No(s): July Term, 2017 No. 02958
BEFORE: PANELLA, P.J., McLAUGHLIN, J., and McCAFFERY, J.
OPINION BY McLAUGHLIN, J.: FILED DECEMBER 16, 2020
The Defender Association of Philadelphia (“Defender Association”)
appeals from the judgment entered against it and in favor of Z.F.1 and Z.F.2
(“Children” or “Plaintiffs”), by and through their parent and natural guardian,
V.B. (“Father”). The Defender Association claims that it is immune as a matter
of law from suit, Plaintiffs failed to prove that it breached a standard of care
or caused damages, the court erred in evidentiary rulings, and the court
erroneously denied remittitur. We affirm.
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Plaintiffs filed this action in June 2016, seeking damages for abuse
Children allegedly suffered while Children lived in their foster parents’ home.
Trial Court Opinion, filed Aug. 2, 2019, at 2(“1925(a) Op.”). They brought the
action against “an agency that certifies and oversees foster homes,”
Bethanna, and Children’s foster parents, Wayne and Rosella Keeny (“foster
parents”). Id. Subsequently, in July 2017, Plaintiffs filed a separate action
naming the Defender Association as a defendant,1 and the trial court
consolidated the cases.2 The Defender Association filed an Answer and New
Matter and asserted in New Matter, “Answering Defendants incorporate by
reference all affirmative defenses according to the Pennsylvania Rules of Civil
Procedure 1030(a).” Defender Association’s Answer, filed Oct. 18, 2017, at ¶
126. One of the defenses listed in Rule 1030(a) is “immunity from suit.”
Pa.R.C.P. 1030(a). However, the Defender Association did not file any pretrial
motion, such as a motion for summary judgment, seeking dismissal based on
any claim of immunity.
Plaintiffs settled with Bethanna prior to trial, and the case against the
Keenys and the Defender Association proceeded to a jury trial.
____________________________________________
1 This Complaint also included claims against Roger Kimber, Jr., M.D., and
Welsh Mountain Health Centers. Plaintiffs dismissed the claims against Dr.
Kimber and Welsh Mountain Health Centers prior to trial.
2The trial court consolidated the cases for purposes of discovery and trial only.
For that reason, and because the Defender Association was a party to the
second case only, its filing a single notice of appeal from the judgment in the
second case does not violate Commonwealth v. Walker, 185 A.3d 969, 977
(Pa. 2018).
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The trial court set forth the following factual history:
ZF1 and ZF2 are twin siblings. Their biological mother was
unable to provide parental supervision and services, thus
[C]hildren were declared dependent and placed in the foster
care system in April of 2011. On April 29, 2011, the Child
Advocacy Unit of the Defender Association was named
counsel and guardian ad litem of [C]hildren. Bethanna, an
agency that certifies and oversees foster homes, placed
[C]hildren with foster parents Wayne and Rosella Keeny,
who lived in Lancaster, on August 24, 2011. At this time,
[C]hildren were seventeen months old. While [C]hildren
were living with the Keenys, and after roughly three years
of being in the foster care system, the goal for [C]hildren
became adoption. In reference to the process and timing of
adoption, Shereen Arthur White, Esquire (Defender
Association Attorney White)2 testified at trial that “the law
requires that after a certain time you have to kind of move
them forward so they don’t linger in the system.” The
Keenys were viewed as the prospective adoptive parents. In
September of 2013, while [C]hildren were in the care of the
Keenys, the Department of Human Services (DHS)
contacted [Father] to inform him that he may be the father
of [C]hildren.3 [Father] took a paternity test, the results of
which were presented at a dependency hearing in January
of 2014. The results established [Father] as the biological
father of [C]hildren.
2 Defender Association Attorney White was a child
advocate attorney for the Defender Association.
Defender Association Attorney White was assigned to
work on [C]hildren’s case around the time that the
Defender Association received the case.
3 Information regarding the ordering of the paternity
test and the process of contacting [Father] regarding
the paternity test were never discussed on the record.
This information was only discussed in the pleadings,
which do not cite to any source.
[Father] appeared in court for the first time in January 2014.
His paternity having been confirmed, [Father] requested
visitation rights with his children. He was given permission
to start with supervised visits. After having spent time with
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[C]hildren, [Father] informed DHS, his attorney Daniel
Kurland, Esquire, and [C]hildren’s Bethanna caseworker,
Ms. Katie Herrmann, that he suspected abuse in the Keeny
home. On multiple occasions, [Father] expressed concerns
that [C]hildren were being spanked and that ZF1 was made
to sit on the floor with her panties off. Ms. Herrmann told
[Father] that she would check out the allegations of abuse
and report back to him. Ms. Herrmann reported back that
she could not find any proof that abuse was happening.
[Father] again raised concerns of abuse of both children at
a dependency hearing on May 29, 2014. Defender
Association Attorney White and a Bethanna agency worker[]
were both present at this dependency hearing. In her
testimony, Defender Association Attorney White asserted
that “the agency worker from Bethanna” (whom she did not
name) reported, “the Keenys do not spank or physically
discipline ZF1 and ZF2. I was told that they physically
discipline their biological son, but not ZF1 and ZF2.”
Defender Association Attorney White testified that her
general role as a child advocate attorney was to represent
the best interests of the child. One of her specific roles was
to gain, gather, and solicit facts about each of her cases. As
mentioned above, at the May 29, 2014 dependency hearing,
[Father] raised concerns that [C]hildren were being spanked
as well as a concern that ZF1 was being made to sit on the
floor without her underwear.
[The following portion of the May 2014 transcript, where the
DHS social worker stated that Father expressed concerns
about the foster parents, was read to Attorney Williams
during the trial:
He said that he felt that the kids were being spanked
in the foster home because during one of the visits –
and he’s here to testify to that -- they asked the
children something . . . about their bottom. And one
of the kids reported: “I sit on the floor with my panties
down, or something, and then they said something
else.”
N.T., 11/19/18, at 49-50.]
At trial, attorney for [P]laintiffs asked [Attorney White],
“Can we agree that nowhere in that May 29, 2014 transcript
do you follow up with any questions about the child being
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made to sit on the floor with her panties down or do any of
the things that you suggested to this Court and this jury that
you would have done if you had heard such an allegation?”5
In response, Defender Association Attorney White stated, “I
can tell you that in that transcript there’s nothing about me
following up, but my work goes way beyond a transcript in
a court hearing.” Defender Association Attorney White then
confirmed that an allegation such as the one made at the
May 29, 2014 hearing regarding ZF1 being made to sit on
the floor without her panties would warrant immediate
removal and investigation. She further confirmed that she
did not request that ZF1 be removed from the home at the
May 29, 2014 dependency hearing nor at any time
thereafter, prior to the removal of [C]hildren from the Keeny
home in May of 2015.
5 Defender Association Attorney White had testified
that, if she had become aware of an allegation or
involving concern ZF1 [was] being made to sit on the
floor without her underwear in front of Mr. Keeny, “I
would have gotten it before the judge. I would have
asked to remove. I would have asked for further
investigation. I would have asked to get her out of
there while we figure out what’s going on.”
In May of 2015, after [Father] raised additional concerns of
abuse, Bethanna sent caseworker Marissa Morris to visit the
Keenys’ home for further investigation. At trial, Mrs. Keeny
confirmed that, during this visit, Marissa Morris took
[C]hildren separately and inquired of [C]hildren whether
they were being spanked or hit. Mrs. Keeny also
acknowledged that it was during this visit that it actually
came to light that the Keenys had spanked [C]hildren.
On May 13, 2015, Ms. Katie Herrmann, the Bethanna
caseworker who had been assigned to [C]hildren’s case
since January of 2014, reported to Defender Association
Attorney White that the Keenys had confirmed their use of
physical discipline on [C]hildren. The Bethanna foster care
rules forbid corporal punishment of foster children. Defender
Association Attorney White requested that [C]hildren be
moved out of the home immediately. Bethanna initially
attempted instead to implement a “plan of correction”,
which entailed reprimanding the Keenys and allowing
[C]hildren to remain in the Keeny home. However, Defender
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Association Attorney White emailed Bethanna caseworker
Marissa Morris on May 13, 2015, stating that a plan of
correction was an insufficient remedy for the alleged issue
at hand. Defender Association Attorney White stated that
her clients, ZF1 and ZF2, must be moved to respite on that
date. At trial, Mrs. Keeny confirmed that after she admitted
to having spanked [C]hildren, they were removed from the
Keeny[s’] home. In early June of 2015, Colleen Swim,
Esquire (Attorney Swim) succeeded Defender Association
Attorney White as the Defender Association Child Advocate
Attorney for [C]hildren.
According to the Child Protective Services Investigation
Report from November 20, 2015, ZF1 made “consistent and
credible disclosures of sexual abuse”.6 The report also
noted, in reference to ZF1, the “child reported that AP7
inserted his finger in her vagina, in parentheses hiney, and
anus, in parentheses butt, and it caused pain”. ZF1 reported
that this had happened on more than one occasion. On
November 24, 2015, ZF1 and ZF2 disclosed to Bethanna
caseworker Natasha Yoder that Rosella and Wayne Keeny
had sexually molested them and that Wayne Keeny put his
hand in their bottom. In November of 2015, Bethanna sent
Attorney Swim an email which alerted her to the fact that
ZF1 and ZF2 disclosed that they were sexually abused in the
Keeny home.8
6 Video interviews of [C]hildren were played for the
jury on the first day of trial to avoid putting [C]hildren
on the stand.
7 It was never clarified on the record what “AP”
signifies.
8Ms. Swim stated that she did nothing about the email
because [C]hildren were in therapy at the time she
received the email.
On December 5, 2016, [C]hildren moved in [Father].
[Father] testified that “ZF1 and ZF2 both wet the bed” when
they first came to live with him. He also stated that ZF1 had
“anger issues at times, which occurs to this day. She often
goes into blank stares, biting her nails, but – she’s happy.”
When asked if ZF1 exhibited any other behavioral issues,
[Father] said, “Yes. She actually - touches herself’; [Father]
clarified that he was referring to ZF1 touching herself in
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private areas. He also testified, “[A]t my sister’s home
before we moved, she had a couple occasions where she
smeared her poop on the bathroom wall.” When asked about
ZF2, [Father] explained, “He’s quiet, you know. He’s happy
as well, but he bites his nails. He pulls his hair out.”
Wayne Keeny admitted to having spanked both ZF1 and
ZF2, but denied any other type of hitting by himself or
Rosella Keeny. Both Wayne and Rosella Keeny denied all
allegations of sexual abuse. Wayne Keeny admitted to
having used corporal punishment with [C]hildren, even
though he was aware that this was not allowed under the
foster care agreement with Bethanna. Rosella Keeny
admitted to having spanked [C]hildren with her hand or a
wooden spoon. Rosella Keeny also admitted to having used
a wooden ruler on the hands of [C]hildren one time. At trial,
Rosella Keeny provided her perspective regarding the time
ZF1 stated that she was made to sit on the floor with no
underwear. She stated that ZF1 was wound up before bed
and Wayne Keeny asked her to sit on the floor in front of
him as a time-out, to calm her down. Mrs. Keeny added that
she later noticed ZF1’s tights and underwear on the floor,
but stated that ZF1 was covered by her long dress and thus
was not exposed.
Ms. Erica Cook, a social service advocate for the Defender
Association, had been assigned to [C]hildren’s case in 2013.
Ms. Cook testified that she never visited [C]hildren while
they lived in the Keeny home, never attended a hearing for
ZF1 or ZF2, nor did she ever meet Rosella or Wayne Keeny.9
Ms. Cook testified that she was not aware of any concerns
about [C]hildren being mistreated in the Keeny home until
May of 2015. Ms. Cook agreed that, as a social service
advocate, she would want to be made aware of any
allegations that a child was being mistreated.
9 Defender Association Attorney White had testified,
however, that “typically social workers would do all
the home visits”, and that she herself attempted to
partake in home visits for her cases. Defender
Association Attorney White confirmed that there were
times when social workers saw her clients.
1925(a) Op. at 2-7 (citations to record omitted).
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Both Plaintiffs and the Defender Association presented expert testimony
at trial. Plaintiffs called Dr. Robin A. Altman, M.D. to provide expert testimony
about child psychiatry, psychiatry, and placement agencies and to testify that
Bethanna breached the standard of care for a child welfare agency. She also
said that Z.F.1 suffered from post-traumatic stress disorder (“PTSD”) and
disassociation related to trauma. She testified that she believed Children were
abused in the Keeny household. The trial court summarized her testimony as
follows:
Dr. Altman stated that someone should have spoken to
[C]hildren alone and investigated further into the allegations
of abuse raised by [Father]. Additionally, Dr. Altman stated
that she believed ZF1 suffered from posttraumatic stress
disorder, also known as PTSD. Dr. Altman testified that she
believed ZF1 was suffering from disassociation related to
trauma. When asked whether she had an opinion as to
whether ZF1 and ZF2 were abused in the Keeny household,
Dr. Altman responded, “Yes. I believe they were.” Dr.
Altman also testified that she believed, based on evidence
of fecal smearing, that ZF1 was sexually abused in the
Keeny household.
Id. at 8 (citations to record omitted).
For its part, the Defender Association called Dr. Annie Steinberg, M.D.,
to testify as an expert in pediatrics and child psychiatry. She opined that
Children’s symptoms were related to their six moves to different homes at a
young age:
Dr. Steinberg stated that any child who is moved to six
different homes at such a young age would experience
similar issues and exhibit similar symptoms to those of ZF1
and ZF2. Dr. Steinberg opined that Dr. Altman did not spend
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enough time with ZF1 and ZF2 to properly conclude that
they each suffer from posttraumatic stress disorder.
Id.
Dr. Steinberg testified that she did not believe that Children had PTSD,
and when she gave her basis for that opinion, Plaintiffs objected that she was
not offering her own opinion, but rather “bootstrapping” other doctors’
opinions. The trial court sustained the objection:
A. At the current time, I do not believe they have
posttraumatic stress disorder.
Q. And why do you believe that?
A. Because the treatment providers that saw them for the
longest period of time at Joseph J. Peters Institute in
Philadelphia got to know them very well, worked with the
father, worked with the last foster parent before transition
to the biological family. And over many months of working
with [C]hildren, their father and initially the last foster
parent did not believe that they met the criteria for that
diagnosis.
MR. BEZAR: Objection; motion to strike.
THE COURT: I’ll see counsel.
MR. BEZAR: Your Honor, the witness is bootstrapping other
physicians’ opinions. I wasn’t sure where she was going to
go. She started to say the people that had seen them. I
thought she was going to say they reported certain clinical
symptoms, which she’s allowed to suggest and a few other
things. But all of the sudden, she just bootstrapped
someone else’s opinions to form -- to support her or to
suggest her own.
MR. DOYLE: Any medical expert can use the treatment
records of the patient to formulate their opinion and the
basis for their opinion.
MR. BEZAR: Absolutely.
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MR. DOYLE: It includes treatment records by other people
in her field.
MR. BEZAR: Agreed.
MR. DOYLE: And she relied upon that to formulate her
opinions in part. And I think it’s very proper for her to
comment on medical records she reviewed. They were
clearly listed in her report. She clearly offered this opinion.
...
MR. DOYLE: She clearly offered this opinion. She clearly
indicated that she had reviewed these records and what
they showed and why they were important to her.
MR. BEZAR: Absolutely, she’s allowed to review those
records. But she’s not allowed to bootstrap her opinion with
the opinions of others. She’s allowed to use the basic data,
and that is --
THE COURT: It will be stricken.
N.T., 11/20/18, at 303-305. The court also struck another portion of Dr.
Steinberg’s testimony where she repeated other practitioners’ findings.
Plaintiffs also presented the testimony of an expert in dependency court
matters, Karen Deanna Williams, Esquire. She testified, among other things,
about the standard of care of a child advocate and a guardian ad litem. The
trial court gave this summary of her testimony:
[Williams] testified that, in her opinion, the Defender
Association failed to comply with the appropriate standard
of care in regards to their handling of [C]hildren.
Specifically, Expert Witness Attorney Williams testified that
the allegations about a foster child sitting on the floor with
her panties down should have been sufficient to trigger
further investigation on the part of the child advocate. She
noted that the child advocate from the Defender Association
had been made aware of the allegations that ZF1 was made
to sit on the floor with her panties down at the May 29, 2014
dependency hearing, but that the child advocate failed to
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pursue any further investigation or raise any questions after
this allegation was made. In response to [P]laintiffs’
attorney’s questioning on direct examination, Expert
Witness Attorney Williams opined that the Defender
Association’s failure to take adequate care was a “but for”
cause of the harm to ZF1 and ZF2.
1925(a) Op. at 8-9 (citations to record omitted).
Williams’ testimony took place on two non-consecutive days, Thursday,
November 15, 2018, and Monday, November 19, 2018. On November 15, she
testified about a delay in reunification with Father and gave an opinion that
the Defender Association breached the standard of care by failing to obtain
medical records. N.T, 11/15/18, at 176-77. After this testimony, but before
Williams’ subsequent testimony on November 19, Plaintiffs withdrew their
claim that the Defender Association had breached the standard of care by
failing to obtain medical records. They also withdrew the claim premised on a
delay in reunification. N.T., 11/19/18, at 69.
However, when Williams returned to the stand on November 19, the
Defender Association proceeded to cross-examine her about Children’s
medical records. Id. at 68. Plaintiffs objected and explained at sidebar that
they had withdrawn the medical records claim. They argued that the Defender
Association’s questioning of Williams risked that she would “blurt out
something that she is unaware that she is not to blurt out.” Id. at 69. The
Defender Association responded that Plaintiffs needed to tell the jury that they
had withdrawn the issue, and Plaintiffs agreed to tell the jury that “not getting
the records is not a breach in the standard of care.” Id. at 72. Plaintiffs then
argued that questioning Williams about the records was no longer relevant.
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The Defender Association replied that it only wanted to ask her if the Children’s
doctor was a mandatory reporter of child abuse, as a predicate to asking her
if, after the hearing at which the statement about Z.F.1 sitting on the floor
with no underwear came out, the physician had found any abuse. Id. at 75.
The court responded that the Defender Association could “ask those questions,
and that’s the end of it. . . .” Id. at 76.
At the close of Williams’ testimony, the Defender Association asked the
court to strike Williams’ testimony about the withdrawn theories. Id. at 90-
91. The following morning, the parties and the court discussed a cautionary
instruction, and the court asked the parties to agree on wording for such an
instruction. N.T., 11/20/18, at 7-10.
The Defender Association presented its own expert in the practice of
law, professional responsibility, and the duties of a child advocate and a
guardian ad litem, Samuel Stretton, Esquire. He found the Defender
Association did not fail in its responsibilities:
In preparing his expert report, Attorney Stretton reviewed
[P]laintiffs’ complaint, [P]laintiffs’ Bethanna file, [P]laintiffs’
Defender Association file, the dependency court transcripts,
the deposition transcript of Defender Association Attorney
White, and the deposition transcript of Attorney Swim. With
regards to the Defender Association’s standard of care,
Attorney Stretton testified, “there was nothing I saw that
indicated the Defenders failed in their responsibilities of
regular review, checking in with social workers, appearing
at hearings. And as soon as they became aware of a
problem, they immediately . . . requested [C]hildren be
pulled.”
1925(a) Op. at 9 (citations to record omitted).
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The Defender Association directed Stretton’s attention to testimony at
the May 29, 2014 dependency hearing regarding the incident where Z.F.1 was
made to sit on the floor without her panties, and asked him if he had an
opinion about whether Defender Association Attorney White’s “representation
in total at that hearing” met the standard of care. N.T, 11/20/18, at 104-05.
Plaintiffs objected and they argued at sidebar that the response would be
beyond the scope of Stretton’s expert report. Id. at 105. Stretton’s report did
not mention that the social worker had said at the May 2014 hearing that
Z.F.1 had reported that she sat on the floor without underwear. Stretton’s
expert report did say he had reviewed the transcript, and it included the
following opinion:
My opinion, within reasonable legal and ethical certainty, is
that the Defender Association of Philadelphia, as child
advocate and guardian ad litem, fulfilled its common law and
fiduciary obligations of these two minor children, Z.F.1 and
Z.F.2, at all pertinent times. In my review of the record,
there were multiple court hearings where the well-being of
[C]hildren was discussed.
Id. at 115. The trial court sustained the objection.
After the close of evidence, the Defender Association informed the court
that the parties were unable to agree on a cautionary instruction regarding
the withdrawn theories. They therefore renewed their motion to strike
Williams’ testimony about those theories. The court denied the motion. N.T,
11/21/18, at 30-31. During closing argument, Plaintiffs informed the jury that
they had withdrawn the medical records and reunification claims:
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This is not a case about the Child Advocate Unit not getting
medical records or a delay in unification with [Father]. This
is a case about an attorney that served both as a courtroom
advocate and as a guardian ad litem, an attorney that was
required to protect the best interest of a child and failed to
do so by soliciting testimony about things that were raised
during the May 29, 2014 hearing.
Id. at 45. Plaintiffs then focused their argument on the sole remaining
negligence theory against the Defender Association, and did not argue for a
verdict based on either of the withdrawn theories.
The jury found in favor of Plaintiffs, and against the Defender
Association and the Keenys. It awarded damages of $2.5 million to Z.F.1 and
$2.0 million to Z.F.2. When it apportioned liability, it found the Defender
Association 55% liable, Bethanna 20% liable, Wayne Keeny 20% liable, and
Rosella Keeny 5% liable.
The Defender Association filed post-trial motions, including a motion for
judgment notwithstanding the verdict (“JNOV”) arguing Plaintiffs had failed to
present a prima facie case. It also sought a new trial based on allegedly
improper evidentiary rulings, and requested remittitur or reduction of the
damages. The Defender Association then filed a supplemental post-trial
motion, claiming it was entitled to JNOV “based upon a qualified sovereign
immunity.” The trial court denied the post-trial motions, and the Defender
Association filed a timely Notice of Appeal.
The Defender Association raises the following issues:
1. Is the Defender Association immune from suit while
serving the court in the capacity of a guardian ad litem, and
is the issue reviewable or was it waived?
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2. Did the Defender Association commit legal malpractice in
handling vague allegations of spanking by foster parents
when they first surfaced at a 2014 court hearing or
thereafter in light of express denials of spanking by the
foster parents and [C]hildren at the time, a total lack of any
corroborating evidence, and a judicial ruling that the
allegations did not raise concerns about the safety of
[C]hildren?
3. Was the conduct of the Defender Association during or
after the 2014 dependency hearing causally related to harm
suffered by [C]hildren?
4. Did the trial court improperly permit the jury to consider,
over numerous timely objections, prejudicial and irrelevant
testimony by [Plaintiffs’] expert relating to theories of
liability against the Defender Association that [Plaintiffs]
subsequently abandoned at trial?
5. Did the trial court improperly prevent the Defender
Association from presenting expert testimony on the
element of the standard of care in a legal malpractice case?
6. Did the trial court improperly prevent the Defender
Association from presenting expert medical testimony on
the issue of whether [C]hildren were suffering post -
traumatic stress disorder (“PTSD”)?
7. Should the trial court have remitted the excessive amount
of the jury award and the grossly disproportionate share of
fault the jury imposed upon the Defender Association?
Defender’s Br. at 8-12 (“Question Presented:” omitted).
A. Immunity
In its first issue, the Defender Association claims it is immune from suit
because the suit arose from actions taken while one of its attorneys was acting
as a guardian ad litem, and disputes that the claim against it was for legal
malpractice. It is uncertain of the immunity it claims, stating it is eligible for
“judicial and/or quasi-judicial immunity.” Defender’s Br. at 43. It claims it did
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not waive the issue because it asserted immunity as an affirmative defense in
its Answer to the Complaint and re-raised the issue in its supplemental post-
trial motion.
Ordinarily, a party waives appellate review of any issue it did not
properly preserve below. See generally Pa.R.A.P. 302(a). However, some
issues are non-waivable, and the Defender Association likens its claimed
immunity to local governmental immunity, which is nonwaivable. See
Defender’s Reply Br. at 7 (citing Taylor v. Phila., 692 A.2d 308, 313
(Pa.Cmwlth. 1997), aff’d, 699 A.2d 730 (Pa. 1997)). It also suggests that its
claim is for absolute immunity and therefore not subject to waiver. See id.(citing In re XYP, 567 A.2d 1036, 1039 (Pa. 1989); Guarrasi v. Scott, 25
A.3d 394, 405 n.11 (Pa.Cmwlth. 2011).
We do not need to reach the question of waiver because the Defender
Association is asking us to establish a new immunity, which is not for us to
do. Although it contends we would not be creating new law, but rather
extending existing principles, we disagree. The Defender Association concedes
that it has not cited any existing Pennsylvania statute, rule, or case law
establishing that a guardian ad litem enjoys immunity. It instead cites cases
from other states and statements in a federal decision to make what are
fundamentally policy arguments that we should extend immunity to it.
But it is not the institutional role of the Superior Court to make such
policy decisions. Rather, the Superior Court is an error-correcting court and
we leave policy questions to the Supreme Court and the General Assembly.
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Matter of M.P., 204 A.3d 976, 986 (Pa.Super. 2019). “It is not the
prerogative of an intermediate appellate court to enunciate new precepts of
law or to expand existing legal doctrines.” Id. To do as the Defender
Association asks, rather than applying existing rules, we would have to import
them into a novel context where they do not have obvious application. We
therefore decline the invitation to create an immunity for guardians ad litem
and reject the Defender Association’s first issue.
B. Judgment Not Withstanding the Verdict
The Defender Association’s next two claims argue the court erred in
denying its motion for JNOV.
[T]he standard of review for an order granting or denying
judgment notwithstanding the verdict is whether there was
sufficient competent evidence to sustain the verdict. We
must view the evidence in the light most favorable to the
verdict winner and give him or her the benefit of every
reasonable inference arising therefrom while rejecting all
unfavorable testimony and inferences. Furthermore,
judgment nov should be entered only in a clear case, where
the evidence is such that no reasonable minds could
disagree that the moving party is entitled to relief. Review
of the denial of judgment nov has two parts, one factual and
one legal:
Concerning any questions of law, our scope of review
is plenary. Concerning questions of credibility and
weight accorded evidence at trial, we will not
substitute our judgment for that of the finder of fact.
Underwood ex rel. Underwood v. Wind, 954 A.2d 1199, 1206 (Pa.Super.
2008) (quoting N.E. Fence & Iron Works, Inc. v. Murphy Quigley Co.,
Inc., 933 A.2d 664, 668 (Pa.Super. 2007)).
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“To prevail in any negligence action, the plaintiff must establish the
following elements: the defendant owed him or her a duty; the defendant
breached the duty; the plaintiff suffered actual harm; and a causal relationship
existed between the breach of duty and the harm.” Merlini v. Gallitzin
Water Auth., 934 A.2d 100, 104 (Pa.Super. 2007) (citing Freed v.
Geisinger Med. Ctr., 910 A.2d 68, 72–73 (Pa.Super. 2006)).
1. Breach of Standard of Care
The Defender Association claims the evidence did not establish that it
breached a duty of care to Children. It claims that at the 2014 hearing, a social
worker testified that Father informed her that one of the children said that she
“sit[s] on the floor with [her] panties down.” Defender’s Br. at 44 (citation
omitted). It argues that Father did not testify at the hearing that he had any
suspicions of sex abuse, and that Father’s counsel spoke only of “corporal
punishment.” Id. at 45. It further notes that the allegations of spanking were
addressed at the hearing. The Defender Association states that it supported
Father’s request for more visitation, “thereby help[ing] to provide [C]hildren
with precisely what they needed: another set of eyes looking after them and
ears listening to them.” Id. at 44.
The Defender Association also claims that Father’s counsel
“misrepresented” at trial the statement attributed to Z.F.1. Id. at 46. The
Defender Association claims that the alleged misrepresentation – that Z.F.1
“was made” to sit on the floor without her underwear “in front of” foster father
– is “significantly different” from what it contends is the “correct” version of
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the statement – that Z.F.1 “sit[s] on the floor with [her] panties down.” Id.
at 46-47. The Defender Association maintains that because Plaintiffs’ counsel
repeated the misstatement during direct examination of Williams, Plaintiffs’
expert on the standard of care, Williams’ opinion is based on “inaccurate facts”
and is “incurably corrupted.” Id. at 48. The Defender Association concludes
that “the only reliable evidence” on this issue was testimony it presented “that
it conducted appropriate follow up at the May 29, 2014 hearing to determine
if [C]hildren were being subjected to any corporal punishment.” Id.
The trial court concluded that Plaintiffs presented sufficient evidence of
a breach of the standard of care:
In the case at hand, the Defender Association was assigned
to represent both the legal interests and the best interest of
ZF1 and ZF2. The [P]laintiffs’ claim of professional
negligence asserts that the Defender Association breached
their duty of care in regards to the legal interests of ZF1 and
ZF2. The twelve jurors applied the law to the facts of the
case and all twelve jurors found that the Defender
Association’s conduct satisfied all three elements of a claim
of professional negligence. N.T. 11/21/18 at 161-62. As the
party representing [C]hildren’s legal interests, the Defender
Association owed a duty of care to ZF1 and ZF2. The
testimony presented by Expert Witness Attorney Williams
provided sufficient, competent evidence to support a finding
of professional negligence on the part of the Defender
Association, as she testified that they failed to satisfy the
standard of care owed to ZF1 and ZF2 in representing both
their legal interests and their best interests. The facts at trial
supported the claims that the Defender Association failed to
further investigate the allegations of abuse raised at the May
29, 2014 dependency hearing. The record evidence
established that all three elements were met and thus the
jury’s verdict is sustained. Therefore, their claim for
judgment notwithstanding the verdict fails.
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1925(a) Op. at 16-17.
This was not error. Plaintiffs’ evidence was sufficient to establish that
the Defender Association breached its duty of care by failing to investigate
once it became aware that one of the children had reported, “I sit on the floor
with my panties down.” Williams initially offered such an opinion without
Plaintiffs’ counsel making the alleged misrepresentation. Plaintiffs’ counsel
referred Williams to the portion of the dependency transcript that includes that
allegation and asked if that was “something that the child advocate is
supposed to follow up on.” N.T., 11/19/18, at 18-19. She responded,
“Absolutely,” and explained that the Defender Association had an affirmative
duty to gather information and investigate because of the possibility of abuse.
Id. at 19-21. She then opined that the Defender Association’s failure to do so
was a breach of the standard of care. Id. at 21-22.
The alleged mischaracterization appeared later, when Plaintiffs’ counsel
asked Williams a hypothetical question, at which point she offered an opinion
incorporating the allegation that the child was “made” to sit on the floor
without underwear. See id. at 24. However, Williams later read the portion of
the dependency transcript containing the report of abuse, and this time did
not make the misstatement:
He said that he felt that the kids were being spanked in the
foster home because during one of the visits – and he’s here
to testify to that -- they asked the children something . . .
about their bottom. And one of the kids reported: “I sit on
the floor with my panties down, or something, and then they
said something else.”
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Id. at 49-50.
Plaintiffs’ counsel closed his examination of Williams, again without
making the alleged misrepresentation, by asking if a child advocate is
“required to follow up on issues surrounding spankings as well as sitting on
the floor with one’s panties down.” Id. at 36. Williams again responded that
the Defender Association breached a duty of care when it did not follow up on
the report. See id.
The Defender Association then cross-examined Williams, making the
point that the transcript did not include allegations that Z.F.1 was “made” to
sit on the floor without underwear, or that such occurred in front of foster
father:
Q. Does that paragraph indicate Mr. Keeny’s name?
A. No.
Q. Does it say she’s being made to sit on the floor with her
panties down?
A. No.
Q. Does it say: “I was made to sit in front of Mr. Keeny, a
foster parent in his sixties, with no underwear on”?
A. No.
Id. at 50.
The jury thus heard the expert’s direct testimony both with and without
the allegedly inaccurate characterization of the transcript, as well as a cross-
examination making the very point the Defender Association now urges on us.
The jury thus had this the information before it to judge the basis of Williams’
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opinion and to determine the credibility and weight to give her testimony.
When it did so, it held against the Defender Association. Viewing the evidence
in the light most favorable to the Plaintiffs, as verdict-winners, as our standard
of review requires, we find the evidence sufficient to prove breach of duty.
This issue fails.
2. Causation
The Defender Association next claims Plaintiffs failed to establish
causation. It maintains that there was no evidence to establish that whatever
happened at the May 2014 hearing was a substantial factor in causing harm
to Children. It argues that it “is pure speculation to say that additional follow-
up by the Defender [Association] after the 2014 hearing would have resulted
in the discovery of abuse and/or removal of [C]hildren from the [foster
parents’] home.” Defender Association’s Br. at 49. It claims the only evidence
as to causation was expert testimony that inaction following the hearing “left
open the possibility that [C]hildren could be exposed to future harm.” Id. at
50 (emphasis omitted).
Here, the trial court concluded:
The Defender Association . . . posits that [P]laintiffs failed
to provide sufficient evidence to establish that the Defender
Association’s conduct was a “but for” cause of the harm to
ZF1 and ZF2. (Def.’s Memorandum of Law at 14). However,
[P]laintiffs presented evidence at trial which showed that an
attorney from the Defender Association was present at the
May 29, 2014 dependency hearing when [Father] raised
allegations of both physical and sexual abuse. N.T. 11/16/18
PM at 106. Testimony presented by Expert Witness Attorney
Williams noted that a child advocate who was made aware
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of this information should have taken further steps to look
into the allegations of abuse. Id. at 107. The evidence also
showed that the Defender Association failed to further
investigate or question the allegations of abuse raised at the
May 29, 2014 dependency hearing, which led to [C]hildren
remaining in the Keeny home for approximately twelve
more months before they were removed on May 13, 2015.
N.T. 11/16/18 PM at 61. [Father] testified that, after
removal from the Keeny home, ZF1 exhibited symptoms of
bed wetting, anger issues, and fecal smearing. N.T.
11/16/18 AM at 16-17. In addition, he testified that ZF1
touched herself in private areas and stared blankly. Id. With
regards to ZF2, [Father] testified that he exhibited
symptoms of bed wetting, pulled his hair out and bit his
nails. Id. Plaintiffs’ expert, Dr. Altman, testified that she
believed ZF1 and ZF2 suffered from posttraumatic stress
disorder. N.T. 11/15/18 at 63. Thus there was sufficient
evidence in this record for the jury to conclude that the
Defender Association’s professional negligence was a factual
cause of harm to [C]hildren and that both ZF1 and ZF2
suffered actual damage as a result of the Defender
Association’s negligent conduct. The Defender Association is
thus not entitled to judgment notwithstanding the verdict in
regard to this issue.
1925(a) Op. at 15-16 (emphasis in original).
We agree with the trial court that the jury reasonably could have
concluded that the Defender Association’s breach of the standard of care
caused harm to Children. The trial court did not err when it denied the motion
for JNOV.
C. Motion for New Trial
In its next three issues, the Defender Association argues the court erred
in denying its motion for a new trial, which was based on alleged errors in
evidentiary rulings regarding expert testimony. “Our standard of review in
denying a motion for a new trial is to decide whether the trial court committed
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an error of law which controlled the outcome of the case or committed an
abuse of discretion.” Corvin v. Tihansky, 184 A.3d 986, 992 (Pa.Super.
2018) (citation omitted). “The admission of expert testimony is a matter
within the sound discretion of the trial court, whose rulings thereon will not be
disturbed absent a manifest abuse of discretion.” Woodard v. Chatterjee,
827 A.2d 433, 440 (Pa.Super. 2003) (quoting Walsh v. Kubiak, 661 A.2d
416, 419 (Pa.Super. 1995) (en banc)).
To be admissible, “expert testimony must be based on more than mere
personal belief, and must be supported by reference to facts, testimony or
empirical data.” Snizavich v. Rohm and Haas Co., 83 A.3d 191, 195
(Pa.Super. 2013) (citations and internal quotation marks omitted). Although
an expert may rely on information and data not in evidence, “an expert may
not act as a ‘mere conduit or transmitter of the content of an extrajudicial
source.’” Woodard, 827 A.2d at 444 (quoting Primavera v. Celotex Corp.,
608 A.2d 515, 521 (Pa.Super. 1992)).
An “expert” should not be permitted simply to repeat
another’s opinion or data without bringing to bear on it his
own expertise and judgment. Obviously, in such a situation,
the non-testifying expert is not on the witness stand and
truly is unavailable for cross-examination. The applicability
of the rule permitting experts to express opinions relying on
extrajudicial data depends on the circumstances of the
particular case and demands the exercise, like the
admission of all expert testimony, of the sound discretion of
the trial court. Where . . . the expert uses several sources
to arrive at his or her opinion, and has noted the reasonable
and ordinary reliance on similar sources by experts in the
field, and has coupled this reliance with personal
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observation, knowledge and experience, we conclude that
the expert’s testimony should be permitted.
Id. at 444-45 (quoting Primavera, 608 A.2d at 521).
Further, “an expert witness may not testify on direct examination
concerning matters which are either inconsistent with or go beyond the fair
scope of matters testified to in discovery proceedings or included in a separate
report.” Woodard, 827 A.2d at 441 (citation omitted); see also Pa.R.C.P.
4003.5(c). “No ‘hard and fast rule [exists] for determining when a particular
expert’s testimony exceeds the fair scope of his or her pre trial report,’ and
we must examine the facts and circumstances of each case.” Id. at 442(citation omitted). We have stated that, when determining whether testimony
is within the fair scope of the report:
The question to be answered is whether, under the
particular facts and circumstances of the case, the
discrepancy between the expert’s pre-trial report and his
trial testimony is of a nature which would prevent the
adversary from making a meaningful response, or which
would mislead the adversary as to the nature of the
appropriate response.
Id. (quoting Feden v. Consol. Rail Corp., 746 A.2d 1158, 1162 (Pa.Super.
2000)) (emphasis removed).
1. Refusal to Strike Expert Testimony
The Defender Association claims the court erred in denying its request
to grant a new trial based on the court’s failure to strike allegedly prejudicial
testimony of the Plaintiffs’ expert on the standard of care, Attorney Williams.
It argues that Williams testified about three purported breaches – failure to
retrieve medical records, failure to make efforts to reunify Children with
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Father, and failure to follow up on the statements regarding abuse. However,
because Plaintiffs withdrew the first two claims, the Defender Association
claims the court erred when it denied its motion to strike testimony about the
two withdrawn theories.
The trial court found:
The Defender Association . . . contends that this Court erred
by failing to strike Expert Witness Attorney Williams’
“irrelevant testimony” regarding reunification and medical
records. (Def.’s Memorandum of Law at 20). The Defender
Association argues that this testimony carried a danger of
unfair prejudice sufficient to inflame the jury. Id. The
Defender Association waived their right to assert this claim
as they failed to timely object to this testimony. Expert
Witness Attorney Williams testified regarding reunification
and medical records on November 15, 2018. N.T. 11/15/18
at 50, 151-183. Between November 15, 2018 and
November 19, 2018, Expert Witness Attorney Williams
testified on direct examination, cross-examination by both
the Keenys’ counsel and the Defender Association’s counsel,
[P]laintiffs’ re-direct, and the Defender Association’s re-
cross-examination. N.T. 11/15/18; N.T. 11/19/18 PM. It
was not until the Defender Association’s re-cross-
examination of Expert Witness Attorney Williams on
November 19, 2018, that the Defender Association moved
to strike Expert Witness Attorney Williams’ testimony
regarding medical records and reunification. N.T. 11/19/18
PM at 90. In response, this Court requested that the parties
agree upon language for [P]laintiffs’ counsel to use in their
closing argument to inform the jury of the limitation on the
Defender Association’s liability with regards to the
reunification and medical records in question. N.T. 11/20/18
at 6-10.
The parties could not agree upon language, thus the
Defender Association renewed its objection and this Court
overruled it. N.T. 11/21/18 at 30-32.
The Defender Association failed to timely object to Expert
Witness Attorney Williams’ testimony regarding
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reunification and medical records, thus the Defender
Association waived this issue and this claim fails.
1925(a) Op. at 21-22.
We do not think the Defender Association waived this issue by failing to
object when Williams gave the testimony that the Defender Association later
sought to strike. After all, the objection only arose after Williams gave that
testimony. Nor do we think that the Defender Association’s questioning of
Williams on cross-examination amounted to a waiver, as the questioning was
narrowly focused on medical records, and did not mention the separate
reunification claim. Nor did the questioning elicit any testimony reiterating an
opinion about either of the withdrawn claims.
We nonetheless affirm, albeit on a different basis. Even assuming the
trial court ought to have struck the testimony, the Defender Association did
not sustain prejudice. Plaintiffs informed the jury themselves during closing
argument that their case against the Defender Association was limited to the
sole remaining theory, and they did not attempt to obtain a verdict based on
a withdrawn claim.
2. Preclusion of Expert Opinion Based on Fair Scope Rule
The Defender Association next claims the court erred in excluding
testimony from its expert, Attorney Stretton. It claims the court’s ruling that
the expert could not testify regarding an opinion as to the child sitting on the
floor was error because the report indicated the expert reviewed the 2014
transcript, and it was the basis of the opinion that the Defender Association
satisfied its duty of care. It claims the preclusion based on the fair scope rule
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was error because the opinion was expressly in the report. It claims “[t]he
omission of specific words from an otherwise unobjectionable expert report is
not a basis for precluding expert testimony.” Defender’s Br. at 59. It argues
it was prejudiced by this preclusion because it was left without evidence to
rebut the testimony that it breached the standard of care at the 2014 hearing.
The trial court concluded:
In Expert Witness Attorney Stretton’s expert report, he
briefly acknowledged an incident where ZF1 was made to sit
on the floor “without her underwear”. Pl.’s Exhibit 322 at 5.
The text concerning this incident made no reference to the
May 29, 2014 dependency hearing. Id. Expert Witness
Attorney Stretton’s report referred to only one instance in
or around May of 2015, when [Father] spoke with a
Bethanna supervisor regarding his concerns: “He said the
female minor was made to sit on the floor without
underwear.” Id. (Emphasis added)[.] Aside from this lone
statement, Expert Witness Attorney Stretton did not discuss
the incident, nor did he address this incident with regards
to his determination of whether or not Defender Association
Attorney White breached her standard of care. When asked
on direct examination if he was familiar with the incident
where ZF1 was “sitting on the floor without her panties”,
Attorney Stretton confirmed that he was familiar with this
incident. N.T. 11/20/18 at 105. The attorney for the
Defender Association then asked, “Do you have an opinion,
within a reasonable degree of legal and ethical certainty, as
to whether Ms. Arthur White’s representation in total at that
hearing on the 29th met the standard of care?” Id.(Emphasis added)[.] Plaintiffs’ attorney timely objected, on
the grounds that [P]laintiffs “were not on notice that this
witness was going to offer testimony that there was
compliance within the standard of care with respect to
follow-up investigation on the sitting on the floor with her
panties down.” Id. at 106. This Court sustained the
objection, id., and precluded Attorney Stretton from
testifying to anything having to do with the panties and
sitting on the floor. Id. at 121-22.
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The Court found that this testimony fell outside the fair
scope of Attorney Stretton’s report. Plaintiffs were unable to
discern, from his report, that he would be rendering an
opinion concerning Defender Association Attorney White’s
representation at the May 29, 2014 dependency hearing
specific to the concerns raised about ZF1 being made to sit
on the floor with or without her panties. In his report, he
had only referenced [Father] mentioning this concern in May
of 2015 to the Bethanna supervisor, not at a court hearing
on May 29, 2014. Pl.’s Exhibit 322 at 5. Allowing Attorney
Stretton to testify to his opinion based on a different
allegation than what he noted in his report would have
constituted unfair surprise. Therefore, this Court properly
acted within its discretion when it precluded Attorney
Stretton from testifying with regards to the incident of ZF1
being made to sit on the floor with her panties down.
Aside from this incident, Expert Witness Attorney Stretton
was permitted to testify with regards to his opinion as to
whether Defender Association Attorney White had met her
duties and responsibilities to represent [C]hildren. N.T.
11/20/18 at 100. This testimony sufficed for Expert Witness
Attorney Stretton’s opportunity to counter the opinion
offered by [P]laintiffs’ expert and thus was part of the
evidence for the jury’s consideration.
1925(a) Op. at 23-25 (emphasis in original).
We conclude the trial court did not abuse its discretion. The expert
report did not provide an opinion as to whether the Defender Association acted
within the standard of care following the May 2014 hearing regarding the claim
that Z.F.1 sat on the floor without underwear, and the court did not abuse its
discretion concluding that providing such an opinion at the trial was beyond
the fair scope of the report.
3. Preclusion of Expert Testimony Conveying Opinion of Others
The Defender Association also argues that the court erred when it
prevented the jury from hearing expert testimony from Dr. Steinberg
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rebutting the evidence that Children were suffering from post-traumatic stress
disorder. It claims the court erred in finding the expert “bootstrapped her
opinion off the opinions of others.” Defender’s Br. at 60. Dr. Steinberg’s expert
report noted the expert reviewed the medical records and doctor notes and
formed an opinion that “‘the treatment providers that saw [Children] for the
longest period of time’ had correctly concluded [C]hildren showed no lingering
effects from PTSD.” Id. (citation omitted) (alteration in original). It noted an
expert may base an opinion on the opinions of others. Further, here the expert
conducted an independent evaluation of the work done by the physicians and
concluded they were right in their assessment.
The trial court stated:
The Defender Association contends that Dr. Steinberg only
relied on records from others in the field in forming her
opinion that ZF1 and ZF2 did not suffer from posttraumatic
stress disorder. N.T. 11/20/18 at 308-09. To the contrary,
Dr. Steinberg testified regarding another provider’s opinion
as to whether ZF1 and ZF2 suffered from posttraumatic
stress disorder. Id. at 303. In reference to ZF1 and ZF2, Dr.
Steinberg stated, “at the current time, I do not believe they
have posttraumatic stress disorder”. Id. When asked why
she believed that, Dr. Steinberg replied:
Because the treatment providers that saw them for
the longest period of time at Joseph J. Peters Institute
in Philadelphia got to know them very well, worked
with the father, worked with the last foster parent
before transition to the biological family. And over
many months of working with [C]hildren, their father
and initially the last foster parent did not believe that
they met the criteria for that diagnosis.
Id.
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Following an objection by [P]laintiff’s counsel, this Court
struck Dr. Steinberg’s testimony regarding the opinions
offered by others in the field as to whether [C]hildren
suffered from posttraumatic stress disorder. Id. at 305. This
Court properly precluded Dr. Steinberg’s testimony
rendering the opinions of others, thus this assignment of
error fails and the Defender Association is not entitled to a
new trial.
1925(a) Op. at 26.
We conclude the court did not abuse its discretion in precluding Dr.
Steinberg from testifying as to what other doctors concluded. See Woodard,
827 A.2d at 444.
D. Remittitur
In its last argument, the Defender Association argues the jury award
and apportionment of damages to the Defender Association were excessive
and warranted remittitur. It argues there was “no credible basis for the jury’s
finding that the Defender Association was 55% liable for damages from
physical abuse administered by others when [the foster parents] were found
only 25% liable.” Defender’s Br. at 63.
Remittitur is the “procedural [process] by which an excessive verdict of
the jury is reduced.” Carlino v. Ethicon, Inc., 208 A.3d 92, 118 (Pa.Super.
2019) (alteration in original). “[T]he decision to grant a remittitur depends on
whether the award of compensatory damages lies beyond ‘the uncertain limits
of fair and reasonable compensation’ or whether the verdict ‘so shocks the
conscience as to suggest that the jury was influenced by partiality, prejudice,
mistake, or corruption.’” Id. (quoting Hammons v. Ethicon, Inc., 190 A.3d
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1248, 1285-86 (Pa.Super. 2018)). The standard “is highly deferential,
because the trial judge serves not as finder of fact but as impartial courtroom
authority with obligation to give great respect to the jury’s function.” Id.(citations omitted). “This Court is not free to substitute its judgment for that
of the fact finder. Rather, it is our task to determine whether the lower court
committed a clear or gross abuse of discretion when conducting its initial
evaluation of a defendant’s request for remittitur.” Id. (citations and quotation
marks omitted).
The trial court found the award did not shock the conscience:
The Defender Association alleged that the jury award is
excessive and exorbitant. Additionally, the Defender
Association argued that the jury apportionment of [55%]
liability to the Defender Association was excessive and is
evidence of partiality, prejudice, or mistake. The Defender
Association failed to put forth any evidence from the trial to
establish that the verdict so shocked the sense of justice as
to suggest that the jury was influenced by partiality,
prejudice, or mistake. The jury award fell within the
uncertain limits of fair and reasonable compensation and the
award was neither excessive nor exorbitant. The Defender
Association failed to put forth evidence to establish that this
Court committed an abuse of discretion or an error of law,
thus, in denying its request for remittitur, this claim fails.
1925(a) Op. at 27 (citations to record omitted).
We conclude the trial court did not commit a clear or gross abuse of
discretion. Neither the amount awarded by the jury, or its apportionment
among the defendants, shocks the conscience.
Judgment affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/16/2020
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